UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549

Form 10-Q

(Mark One)
x 	 	QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934	
For the Quarterly Period Ended March 31, 2007
or
 
¨	 	TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934	
For the transition period from              to              
Commission File Number: 001-31240

NEWMONT MINING CORPORATION
(Exact name of registrant as specified in its charter)

 
			
Delaware	 	84-1611629	
(State or Other Jurisdiction of
Incorporation or Organization)	 	(I.R.S. Employer
Identification No.)	
		
1700 Lincoln Street
Denver, Colorado	 	80203	
(Address of Principal Executive Offices)	 	(Zip Code)	
Registrant’s telephone number, including area code (303) 863-7414

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.     x   Yes     ¨   No
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer. See definition of “accelerated filer” and “large accelerated filer” in Rule 12-b2 of the Exchange Act.
(Check one): Large accelerated filer   x     Accelerated filer   ¨     Non-accelerated filer   ¨
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12-b2 of the Exchange Act).     ¨   Yes     x   No
There were 425,318,265 shares of common stock outstanding on April 18, 2007 (and 25,783,773 exchangeable shares).

PART I—FINANCIAL INFORMATION

ITEM 1.	FINANCIAL STATEMENTS.	
NEWMONT MINING CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(unaudited, in millions except per share)

 	  	Three Months Ended
March 31,	 	
 	  	2007	 	 	2006	 	
Revenues	  				 				
Sales - gold, net	  	$	1,043	 	 	$	995	 	
Sales - copper, net	  	 	213	 	 	 	137	 	
	  	 	 	 	 	 	 	 	
	  	 	1,256	 	 	 	1,132	 	
	  	 	 	 	 	 	 	 	
Costs and expenses	  				 				
Costs applicable to sales (exclusive of depreciation, depletion and amortization shown separately below)	  				 				
Gold	  	 	676	 	 	 	494	 	
Copper	  	 	128	 	 	 	65	 	
Depreciation, depletion and amortization	  	 	192	 	 	 	140	 	
Exploration	  	 	40	 	 	 	33	 	
Advanced projects, research and development	  	 	18	 	 	 	21	 	
General and administrative	  	 	37	 	 	 	37	 	
Other expense, net	  	 	22	 	 	 	14	 	
	  	 	 	 	 	 	 	 	
	  	 	1,113	 	 	 	804	 	
	  	 	 	 	 	 	 	 	
Other income (expense)	  				 				
Other income, net (Note 3)	  	 	67	 	 	 	35	 	
Interest expense, net	  	 	(24	)	 	 	(20	)	
	  	 	 	 	 	 	 	 	
	  	 	43	 	 	 	15	 	
	  	 	 	 	 	 	 	 	
Income from continuing operations before income tax expense, minority interest and equity income of affiliates	  	 	186	 	 	 	343	 	
Income tax expense (Note 6)	  	 	(62	)	 	 	(37	)	
Minority interest in income of consolidated subsidiaries	  	 	(56	)	 	 	(99	)	
	  	 	 	 	 	 	 	 	
Income from continuing operations	  	 	68	 	 	 	207	 	
Income from discontinued operations (Note 7)	  	 	—	 	 	 	2	 	
	  	 	 	 	 	 	 	 	
Net income	  	$	68	 	 	$	209	 	
	  	 	 	 	 	 	 	 	
Income per common share (Note 9)	  				 				
Basic:	  				 				
Income from continuing operations	  	$	0.15	 	 	$	0.47	 	
Income from discontinued operations	  	 	—	 	 	 	—	 	
	  	 	 	 	 	 	 	 	
Net income	  	$	0.15	 	 	$	0.47	 	
	  	 	 	 	 	 	 	 	
Diluted:	  				 				
Income from continuing operations	  	$	0.15	 	 	$	0.46	 	
Income from discontinued operations	  	 	—	 	 	 	—	 	
	  	 	 	 	 	 	 	 	
Net income	  	$	0.15	 	 	$	0.46	 	
	  	 	 	 	 	 	 	 	
Basic weighted-average common shares outstanding	  	 	451	 	 	 	448	 	
	  	 	 	 	 	 	 	 	
Diluted weighted-average common shares outstanding	  	 	452	 	 	 	451	 	
	  	 	 	 	 	 	 	 	
Cash dividends declared per common share	  	$	0.10	 	 	$	0.10	 	
	  	 	 	 	 	 	 	 	
The accompanying notes are an integral part of the condensed consolidated financial statements.
 
2

NEWMONT MINING CORPORATION
CONDENSED CONSOLIDATED BALANCE SHEETS
(unaudited, in millions)

 	  	At March 31,
2007	  	At December 31,
2006	
ASSETS	  			  			
Cash and cash equivalents	  	$	786	  	$	1,166	
Marketable securities and other short-term investments (Note 12)	  	 	130	  	 	109	
Trade receivables	  	 	275	  	 	142	
Accounts receivable	  	 	142	  	 	216	
Inventories (Note 13)	  	 	381	  	 	382	
Stockpiles and ore on leach pads (Note 14)	  	 	353	  	 	378	
Deferred income tax assets	  	 	149	  	 	156	
Other current assets	  	 	79	  	 	93	
	  	 	 	  	 	 	
Current assets	  	 	2,295	  	 	2,642	
Property, plant and mine development, net	  	 	7,036	  	 	6,847	
Investments (Note 12)	  	 	1,230	  	 	1,319	
Long-term stockpiles and ore on leach pads (Note 14)	  	 	805	  	 	812	
Deferred income tax assets	  	 	638	  	 	799	
Other long-term assets	  	 	185	  	 	178	
Goodwill	  	 	2,986	  	 	3,004	
	  	 	 	  	 	 	
Total assets	  	$	15,175	  	$	15,601	
	  	 	 	  	 	 	
LIABILITIES	  			  			
Current portion of long-term debt (Note 15)	  	$	164	  	$	159	
Accounts payable	  	 	291	  	 	340	
Employee-related benefits	  	 	161	  	 	182	
Derivative instruments (Note 8)	  	 	41	  	 	174	
Income and mining taxes	  	 	334	  	 	364	
Other current liabilities (Note 16)	  	 	475	  	 	520	
	  	 	 	  	 	 	
Current liabilities	  	 	1,466	  	 	1,739	
Long-term debt (Note 15)	  	 	1,726	  	 	1,752	
Reclamation and remediation liabilities (Note 17)	  	 	528	  	 	528	
Deferred income tax liabilities	  	 	569	  	 	703	
Employee-related benefits	  	 	310	  	 	309	
Other long-term liabilities (Note 16)	  	 	226	  	 	135	
	  	 	 	  	 	 	
Total liabilities	  	 	4,825	  	 	5,166	
	  	 	 	  	 	 	
Commitments and contingencies (Note 21)	  			  			
Minority interest in subsidiaries	  	 	1,163	  	 	1,098	
	  	 	 	  	 	 	
STOCKHOLDERS’ EQUITY	  			  			
Common stock	  	 	680	  	 	677	
Additional paid-in capital	  	 	6,726	  	 	6,703	
Accumulated other comprehensive income	  	 	582	  	 	673	
Retained earnings	  	 	1,199	  	 	1,284	
	  	 	 	  	 	 	
Total stockholders’ equity	  	 	9,187	  	 	9,337	
	  	 	 	  	 	 	
Total liabilities and stockholders’ equity	  	$	15,175	  	$	15,601	
	  	 	 	  	 	 	
The accompanying notes are an integral part of the condensed consolidated financial statements.
 
3

NEWMONT MINING CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(unaudited, in millions)

 	  	Three Months Ended
March 31,	 	
 	  	2007	 	 	2006	 	
Operating activities:	  				 				
Net income	  	$	68	 	 	$	209	 	
Adjustments to reconcile net income to net cash from continuing operations:	  				 				
Depreciation, depletion and amortization	  	 	192	 	 	 	140	 	
Income from discontinued operations	  	 	—	 	 	 	(2	)	
Accretion of accumulated reclamation obligations	  	 	10	 	 	 	7	 	
Deferred income taxes	  	 	1	 	 	 	(72	)	
Minority interest expense	  	 	56	 	 	 	99	 	
Gain on asset sales, net	  	 	(2	)	 	 	(2	)	
Gain on investments, net	  	 	(27	)	 	 	—	 	
Hedge gain, net	  	 	(3	)	 	 	(9	)	
Other operating adjustments and write-downs	  	 	26	 	 	 	37	 	
	  	 	 	 	 	 	 	 	
Net cash provided from continuing operations before net change in operating assets and liabilities	  	 	321	 	 	 	407	 	
Net change in operating assets and liabilities (Note 18)	  	 	(263	)	 	 	(174	)	
	  	 	 	 	 	 	 	 	
Net cash provided from continuing operations	  	 	58	 	 	 	233	 	
Net cash provided from discontinued operations	  	 	—	 	 	 	2	 	
	  	 	 	 	 	 	 	 	
Net cash from operations	  	 	58	 	 	 	235	 	
	  	 	 	 	 	 	 	 	
Investing activities:	  				 				
Additions to property, plant and mine development	  	 	(362	)	 	 	(367	)	
Investments in marketable debt and equity securities	  	 	(153	)	 	 	(672	)	
Proceeds from sale of marketable debt and equity securities	  	 	124	 	 	 	970	 	
Acquisitions (Note 11)	  	 	—	 	 	 	(187	)	
Other	  	 	1	 	 	 	2	 	
	  	 	 	 	 	 	 	 	
Net cash used in investing activities of continuing operations	  	 	(390	)	 	 	(254	)	
Net cash used in investing activities of discontinued operations	  	 	—	 	 	 	(3	)	
	  	 	 	 	 	 	 	 	
Net cash used in investing activities	  	 	(390	)	 	 	(257	)	
	  	 	 	 	 	 	 	 	
Financing activities:	  				 				
Repayment of debt	  	 	(21	)	 	 	(20	)	
Dividends paid to common stockholders	  	 	(45	)	 	 	(45	)	
Dividends paid to minority interests	  	 	(1	)	 	 	(45	)	
Proceeds from stock issuance	  	 	9	 	 	 	38	 	
Change in restricted cash and other	  	 	8	 	 	 	(8	)	
	  	 	 	 	 	 	 	 	
Net cash used in financing activities	  	 	(50	)	 	 	(80	)	
	  	 	 	 	 	 	 	 	
Effect of exchange rate changes on cash	  	 	2	 	 	 	(1	)	
	  	 	 	 	 	 	 	 	
Net change in cash and cash equivalents	  	 	(380	)	 	 	(103	)	
Cash and cash equivalents at beginning of period	  	 	1,166	 	 	 	1,082	 	
	  	 	 	 	 	 	 	 	
Cash and cash equivalents at end of period	  	$	786	 	 	$	979	 	
	  	 	 	 	 	 	 	 	
The accompanying notes are an integral part of the condensed consolidated financial statements.
 
4

NEWMONT MINING CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
(dollars in millions, except per share, per ounce and per pound amounts)
 
(1)	 	BASIS OF PRESENTATION	
The interim Condensed Consolidated Financial Statements of Newmont Mining Corporation and its subsidiaries (collectively, “Newmont” or the “Company”) are unaudited. In the opinion of management, all adjustments and disclosures necessary for a fair presentation of these interim statements have been included. The results reported in these interim Condensed Consolidated Financial Statements are not necessarily indicative of the results that may be reported for the entire year. These interim Condensed Consolidated Financial Statements should be read in conjunction with Newmont’s Consolidated Financial Statements included in its Annual Report on Form 10-K for the year ended December 31, 2006, filed February 26, 2007.
References to “A$” refer to Australian currency, “CDN$” to Canadian currency, “IDR” to Indonesian currency and “$” to United States currency.
Certain amounts for the three months ended March 31, 2006 have been reclassified to conform to the 2007 presentation. The Company has reclassified the income statement and cash flow statement amounts for the Zarafshan-Newmont Joint Venture operation from the historical presentation to discontinued operations in the Condensed Consolidated Statements of Income and Cash Flows for all periods presented.
 
(2)	 	ACCOUNTING DEVELOPMENTS	
Recently Adopted Pronouncements
Income Taxes
The Company adopted Financial Accounting Standards Board (“FASB”) Interpretation No. 48, “Accounting for Uncertainty in Income Taxes,” (“FIN 48”) an interpretation of FASB Statement No. 109, “Accounting for Income Taxes” on January 1, 2007. As a result of the implementation of FIN 48, the Company recognized a $72 increase in its net liability for unrecognized income tax benefits. The beginning balance of net deferred tax assets was reduced by $37 (primarily, as a result of utilization of foreign tax credits and net operating losses as part of the FIN 48 measurement process, offset, in part, by the impact of the interaction of the Alternative Minimum Tax rules), goodwill increased by $5, minority interest increased by $4, and retained earnings decreased by $108. In addition, the Company reclassified $16 of income tax liabilities from current to non-current liabilities because payment of cash is not anticipated within one year of the balance sheet date. At January 1, 2007, the Company had $267 of total gross unrecognized tax benefits. Of this, $202 represents the amount of net unrecognized tax benefits that, if recognized, would affect the Company’s effective income tax rate.
The Company’s continuing practice is to recognize interest and/or penalties related to unrecognized tax benefits as part of its income tax expense. The Company had $13 accrued for interest at January 1, 2007. This amount has been considered in the statement of financial position as part of the cumulative effect adjustment to retained earnings.
The Company or one of its subsidiaries files income tax returns in the U.S. federal jurisdiction, various states and in foreign jurisdictions. With limited exception, the Company is no longer subject to U.S. federal, state and local income or non-U.S. income tax audits by taxing authorities for years through 1999.
Recently Issued Pronouncements
Fair Value Option for Financial Assets and Liabilities
In February 2007, the FASB issued FASB Statement No. 159, “The Fair Value Option for Financial Assets and Financial Liabilities” (“FAS 159”). FAS 159 permits entities to choose to measure many financial instruments and certain other items at fair value, with the objective of improving financial reporting by mitigating volatility in reported earnings caused by measuring related assets and liabilities differently without having to apply complex hedge accounting provisions. The provisions of FAS 159 are effective for the Company’s year ending December 31, 2008. The Company is currently evaluating the impact that the adoption of this statement will have on the Company’s consolidated financial position, results of operations and disclosures.
Fair Value Measurements
In September 2006, the FASB issued FASB Statement No. 157, “Fair Value Measurements” (“FAS 157”). FAS 157 defines fair value, establishes a framework for measuring fair value in generally accepted accounting principles, and expands disclosures about fair value measurement. The provisions of FAS 157 are effective for the Company’s fiscal year ending December 31, 2008. The Company is currently evaluating the impact that the adoption of this statement will have on the Company’s consolidated financial position, results of operations and disclosures.
 
5

NEWMONT MINING CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited) (Continued)
(dollars in millions, except per share, per ounce and per pound amounts)
 
(3)	 	OTHER INCOME, NET	

   	  	Three Months Ended March 31,	 	
 	  	2007	 	 	2006	 	
Gain on investments, net	  	$	27	 	 	$	1	 	
Royalty and dividend income	  	 	31	 	 	 	29	 	
Interest income	  	 	13	 	 	 	19	 	
Income from development projects, net	  	 	––	 	 	 	4	 	
Loss on ineffective portion of derivative instruments, net (Note 8)	  	 	(2	)	 	 	(24	)	
Foreign currency exchange (losses) gains, net	  	 	(5	)	 	 	3	 	
Other	  	 	3	 	 	 	3	 	
	  	 	 	 	 	 	 	 	
	  	$	67	 	 	$	35	 	

(4)	 	EMPLOYEE PENSION AND OTHER BENEFIT PLANS	

   	  	Three Months Ended March 31,	 	
 	  	2007	 	 	2006	 	
Pension benefit costs, net	  				 				
Service cost	  	$	5	 	 	$	4	 	
Interest cost	  	 	6	 	 	 	5	 	
Expected return on plan assets	  	 	(5	)	 	 	(4	)	
Amortization of loss	  	 	2	 	 	 	2	 	
	  	 	 	 	 	 	 	 	
	  	$	8	 	 	$	7	 	

							
   	  	Three Months Ended March 31,	
 	  	2007	  	2006	
Other benefit costs, net	  			  			
Service cost	  	$	1	  	$	2	
Interest cost	  	 	1	  	 	1	
	  	 	 	  	 	 	
	  	$	2	  	$	3	

(5)	 	STOCK BASED COMPENSATION	
The Company recognized stock options and other stock based compensation as follows:

   	  	Three Months Ended March 31,	
 	  	2007	  	2006	
Stock options	  	$	4	  	$	6	
Restricted stock	  	 	2	  	 	––	
Restricted stock units	  	 	1	  	 	––	
Deferred stock awards	  	 	2	  	 	2	
	  	 	 	  	 	 	
	  	$	9	  	$	8	
	  	 	 	  	 	 	
No stock option awards were granted during the three months ended March 31, 2007 and 2006. At March 31, 2007, there was $20 of unrecognized compensation cost related to unvested stock options. This cost is expected to be recognized over a weighted-average period of approximately 1.8 years.
For the three months ended March 31, 2007 and 2006, 141,828 and 102,491 shares of restricted stock, respectively, were granted and issued, at the weighted-average fair market value of $45 and $58, respectively.
For the three months ended March 31, 2007 and 2006, 20,212 and 19,181 shares of restricted stock units, respectively, were granted, at the weighted-average fair market value of $45 and $58, respectively, per underlying share of the Company’s common stock.
No deferred stock awards were granted during the three months ended March 31, 2007 and 2006.
 
6

NEWMONT MINING CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited) (Continued)
(dollars in millions, except per share, per ounce and per pound amounts)
 
(6)	 	INCOME TAXES	
The Company operates in numerous countries around the world and accordingly it is subject to, and pays annual income taxes under, the various income tax regimes in the countries in which it operates. Some of these tax regimes are defined by contractual agreements with the local government, and others are defined by the general corporate income tax laws of the country. The Company has historically filed, and continues to file, all required income tax returns and to pay the taxes reasonably determined to be due. The tax rules and regulations in many countries are highly complex and subject to interpretation. From time to time the Company is subject to a review of its historic income tax filings and in connection with such reviews, disputes can arise with the taxing authorities over the interpretation or application of certain rules to the Company’s business conducted within the country involved. The Company adopted the provisions of FASB Interpretation No. 48, “Accounting for Uncertainty in Income Taxes,” (“FIN 48”) an interpretation of FASB Statement No. 109, “Accounting for Income Taxes” on January 1, 2007. FIN 48 clarifies the accounting and reporting for uncertainties in income tax law. The interpretation prescribes a comprehensive model for the financial statement recognition, measurement, presentation and disclosure of uncertain tax positions taken or expected to be taken in income tax returns. Refer to “Recently Adopted Pronouncements” for the discussion regarding the cumulative effect of adopting FIN 48.
In December 2006, the Company entered into an in-principle heads of agreement with the Australian Taxation Office (“ATO”). The heads of agreement specifies the terms of a proposed settlement of the outstanding audit issues relating to Normandy for the tax years 1994-1999. The issues relate to years before the Company acquired Normandy. At the date of the business combination, Normandy had recorded no income tax liability with respect to the tax positions taken in reporting certain transactions, therefore the Company’s initial best estimate of the income tax contingency relating to these issues was recorded as a tax liability at the date of acquisition, February 15, 2002, by increasing the purchase price of Normandy. At December 31, 2006, the long-term income tax liability balance relating to this proposed settlement was reclassified to current income taxes payable and remains outstanding at March 31, 2007.
 
(7)	 	DISCONTINUED OPERATIONS	
Discontinued operations include the Company’s 50% interest in the Zarafshan-Newmont Joint Venture, expropriated by the Uzbekistan government in August 2006, and the Holloway mine sold in November 2006. The Company has reclassified the income statement results from the historical presentation to Income from discontinued operations in the Condensed Consolidated Statements of Income for all periods presented. The Condensed Consolidated Statements of Cash Flows have been reclassified for discontinued operations for all periods presented.
The following table details selected financial information included in Income from discontinued operations in the Condensed Consolidated Statements of Income:

   	  	Three Months Ended
March 31, 2006	
Sales - gold, net	  	$	23	
		
Income from operations	  	$	—	
Income tax benefit	  	 	2	
	  	 	 	
Income from discontinued operations	  	$	2	

7

NEWMONT MINING CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited) (Continued)
(dollars in millions, except per share, per ounce and per pound amounts)
 
(8)	 	SALES CONTRACTS, COMMODITY AND DERIVATIVE INSTRUMENTS	
For the three months ended March 31, 2007 and 2006, losses of $2 and $24, respectively, were included in Other income, net for the ineffective portion of derivative instruments designated as cash flow hedges. The amount anticipated to be reclassified from Accumulated other comprehensive income to income for derivative instruments during the next 12 months is a gain of approximately $6. The maximum period over which hedged forecasted transactions are expected to occur is 4 years.
Newmont had the following derivative contracts outstanding at March 31, 2007:

   	  	Expected Maturity Date	  	Fair Value	 	
   	  	2007	  	2008	  	Total/
Average	  	At March 31,
2007	 	 	At December 31,
2006	 	
Copper Collar Contracts (1) ($ denominated):	  			  			  			  				 				
Pounds (millions)	  	 	13	  	 	—	  	 	13	  	$	(21	) (2)	 	$	(149	) (3)	
Average cap price	  	$	1.43	  	$	—	  	$	1.43	  				 				
Average floor price	  	$	1.10	  	$	—	  	$	1.10	  				 				
$/IDR Forward Purchase Contracts (1) :	  			  			  			  				 				
$ (millions)	  	$	43	  	$	3	  	$	46	  	$	2	 	 	$	4	 	
Average rate (IDR/$)	  	 	9,606	  	 	9,365	  	 	9,590	  				 				

(1)	 	56.25% guaranteed by Newmont, 43.75% guaranteed by an affiliate of Sumitomo Corporation, delivered in the first quarter of 2007, awaiting final settlement.	

(2)	 	The fair value does not include amounts payable ($20) on derivative contracts that were closed out in March 2007 with the net settlement due in April 2007.	

(3)	 	The fair value does not include amounts payable ($24) on derivative contracts that were closed out in December 2006 with the net settlement due and paid in January 2007.	
Provisional Copper and Gold Sales
The Company’s provisional copper and gold sales contain an embedded derivative that is required to be separated from the host contract for accounting purposes. The host contract is the receivable from the sale of the copper concentrates at the forward London Metal Exchange price at the time of sale. The embedded derivative, which does not qualify for hedge accounting, is marked to market through earnings each period prior to final settlement.
At March 31, 2007 and 2006, Batu Hijau had the following gross revenues before treatment and refining charges subject to final price adjustments:

   	  	At March 31,	 	
   	  	2007	 	 	2006	 	
Gross revenue subject to final price adjustments	  				 				
Copper	  	$	386	 	 	$	377	 	
Gold	  	$	33	 	 	$	15	 	
			
The average final price adjustments realized were as follows:	  				 				
		
 	  	Three Months Ended March 31,	 	
 	  	2007	 	 	2006	 	
Average final price adjustments	  				 				
Copper	  	 	(19	)%	 	 	26	%	
Gold	  	 	2	%	 	 	9	%	
Price-Capped Forward Sales Contracts
In 2001, Newmont entered into transactions that closed out certain call options. The options were replaced with a series of forward sales contracts requiring physical delivery of the same quantity of gold over slightly extended future periods. Under the terms of the contracts, Newmont will realize the lower of the spot price on the delivery date or the capped price, ranging from $381 to $392 per ounce. The initial fair value of the forward sales contracts was recorded as deferred revenue. At March 31, 2007, $47 remained in deferred revenue and will be included in revenue as delivery occurs. The forward sales contracts are accounted for as normal sales contracts under SFAS No. 133 “Accounting for Derivative Instruments and Hedging Activities” and SFAS No. 138 “Accounting for
 
8

NEWMONT MINING CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited) (Continued)
(dollars in millions, except per share, per ounce and per pound amounts)
 
Certain Derivative Instruments and Certain Hedging Activities-an Amendment to SFAS No. 133.” The fair value of these contracts are not included on the Condensed Consolidated Balance Sheets.
Newmont had the following price-capped forward sales contracts outstanding at March 31, 2007:

    	  	Scheduled Maturity Date or Transaction Date	  	Fair Value	 	
   	  	2008	  	2009	  	2011	  	Total/
Average	  	At March 31,
2007	 	 	At December 31,
2006	 	
Ounces (thousands)	  	 	1,000	  	 	600	  	 	250	  	 	1,850	  	$	(589	)	 	$	(534	)	
Average price	  	$	384	  	$	381	  	$	392	  	$	384	  				 				
Interest Rate Swap Contracts
At March 31, 2007, Newmont had $100 fixed to floating swap contracts designated as a hedge against a portion of its $275 8 5/8% debentures expiring in 2011. Under the hedge contract terms, the Company receives fixed-rate interest payments at 8.625% and pays floating-rate interest amounts based on periodic London Interbank Offered Rate (“LIBOR”) settings plus a spread, ranging from 2.60% to 3.49%. For the three months ended March 31, 2007 and 2006, these transactions had an insignificant impact on interest expense. The fair value of the interest rate swaps was $(1) and $1 at March 31, 2007 and December 31, 2006, respectively.
 
(9)	 	INCOME PER COMMON SHARE	
Basic income per common share is computed by dividing income available to common shareholders by the weighted average number of common shares outstanding for the period. Diluted income per common share is computed similarly to basic income per common share except that the denominator is increased to include the number of additional common shares that would have been outstanding if the potentially dilutive common shares had been issued.

   	  	Three Months Ended March 31,	
   	  	2007	  	2006	
Numerator:	  			  			
Income from continuing operations	  	$	68	  	$	207	
Income from discontinued operations	  	 	—	  	 	2	
	  	 	 	  	 	 	
Net income	  	$	68	  	$	209	
	  	 	 	  	 	 	
Denominator:	  			  			
Basic	  	 	451	  	 	448	
Effect of employee stock-based awards	  	 	1	  	 	3	
	  	 	 	  	 	 	
Diluted	  	 	452	  	 	451	
	  	 	 	  	 	 	
Income per common share	  			  			
Basic:	  			  			
Income from continuing operations	  	$	0.15	  	$	0.47	
Income from discontinued operations	  	 	—	  	 	—	
	  	 	 	  	 	 	
Net income	  	$	0.15	  	$	0.47	
	  	 	 	  	 	 	
Diluted:	  			  			
Income from continuing operations	  	$	0.15	  	$	0.46	
Income from discontinued operations	  	 	—	  	 	—	
	  	 	 	  	 	 	
Net income	  	$	0.15	  	$	0.46	
	  	 	 	  	 	 	
Options to purchase 2.2 million and 1.2 million shares of common stock at average exercise prices of $51.40 and $50.15 were outstanding at March 31, 2007 and 2006, respectively, but were not included in the computation of diluted weighted average number of common shares because their effect would have been anti-dilutive.
 
9

NEWMONT MINING CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited) (Continued)
(dollars in millions, except per share, per ounce and per pound amounts)
 
(10)	 	COMPREHENSIVE INCOME	

   	  	Three Months Ended March 31,	 	
   	  	2007	 	 	2006	 	
Net income	  	$	68	 	 	$	209	 	
Other comprehensive income (loss), net of tax:	  				 				
Unrealized (loss) gain on marketable equity securities (Note 12)	  	 	(104	)	 	 	191	 	
Foreign currency translation adjustments	  	 	6	 	 	 	(1	)	
Change in pension and other benefit liabilities:	  				 				
Net amount reclassified to income	  	 	2	 	 	 	—	 	
Change in fair value of cash flow hedge instruments:	  				 				
Net change from periodic revaluations	  	 	11	 	 	 	(113	)	
Net amount reclassified to income	  	 	(6	)	 	 	78	 	
	  	 	 	 	 	 	 	 	
Net unrecognized gain (loss) on derivatives	  	 	5	 	 	 	(35	)	
	  	 	 	 	 	 	 	 	
	  	 	(91	)	 	 	155	 	
	  	 	 	 	 	 	 	 	
Comprehensive (loss) income	  	$	(23	)	 	$	364	 	

(11)	 	ACQUISITIONS	
In March 2006, Newmont acquired Newcrest Mining Limited’s 22.22% interest in the Boddington unincorporated joint venture, bringing its interest in the project to 66.67%, for cash consideration of $164.
In January 2006, Newmont acquired the remaining 15% interest in the Akyem project for cash consideration of $23, bringing its interest in the project to 100%.
 
(12)	 	INVESTMENTS	

   	  	At March 31, 2007	
   	  	 	  	Unrealized	 	 	 	
   	  	Cost/Equity
Basis	  	Gain	  	Loss	 	 	Fair/Equity
Value	
Current:	  			  			  				 			
Marketable Debt Securities:	  			  			  				 			
Auction rate securities	  	$	10	  	$	—	  	$	—	 	 	$	10	
	  	 	 	  	 	 	  	 	 	 	 	 	 	
Marketable Equity Securities:	  			  			  				 			
Oxiana Ltd.	  	 	64	  	 	—	  	 	—	 	 	 	64	
Other	  	 	10	  	 	38	  	 	—	 	 	 	48	
	  	 	 	  	 	 	  	 	 	 	 	 	 	
	  	 	74	  	 	38	  	 	—	 	 	 	112	
	  	 	 	  	 	 	  	 	 	 	 	 	 	
Other investments, at cost	  	 	8	  	 	—	  	 	—	 	 	 	8	
	  	 	 	  	 	 	  	 	 	 	 	 	 	
	  	$	92	  	$	38	  	$	—	 	 	$	130	
	  	 	 	  	 	 	  	 	 	 	 	 	 	
Long-term:	  			  			  				 			
Marketable Equity Securities:	  			  			  				 			
Canadian Oil Sands Trust	  	$	266	  	$	488	  	$	—	 	 	$	754	
Gabriel Resources, Ltd.	  	 	97	  	 	77	  	 	—	 	 	 	174	
Shore Gold, Inc.	  	 	90	  	 	21	  	 	—	 	 	 	111	
Miramar Mining Corporation	  	 	27	  	 	60	  	 	—	 	 	 	87	
Other	  	 	32	  	 	12	  	 	(1	)	 	 	43	
	  	 	 	  	 	 	  	 	 	 	 	 	 	
	  	 	512	  	 	658	  	 	(1	)	 	 	1,169	
	  	 	 	  	 	 	  	 	 	 	 	 	 	
Other investments, at cost	  	 	10	  	 	—	  	 	—	 	 	 	10	
	  	 	 	  	 	 	  	 	 	 	 	 	 	
Investment in Affiliates:	  			  			  				 			
European Gold Refineries	  	 	25	  	 	—	  	 	—	 	 	 	25	
AGR Matthey Joint Venture	  	 	16	  	 	—	  	 	—	 	 	 	16	
Regis Resources NL	  	 	10	  	 	—	  	 	—	 	 	 	10	
	  	 	 	  	 	 	  	 	 	 	 	 	 	
	  	 	51	  	 	—	  	 	—	 	 	 	51	
	  	 	 	  	 	 	  	 	 	 	 	 	 	
	  	$	573	  	$	658	  	$	(1	)	 	$	1,230	

10

NEWMONT MINING CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited) (Continued)
(dollars in millions, except per share, per ounce and per pound amounts)

 	  	At December 31, 2006	
 	  	Cost/Equity	  	Unrealized	 	 	Fair/Equity	
 	  	Basis	  	Gain	  	Loss	 	 	Basis	
Current:	  			  			  				 			
Marketable Debt Securities:	  			  			  				 			
Auction rate securities	  	$	10	  	$	—	  	$	—	 	 	$	10	
	  	 	 	  	 	 	  	 	 	 	 	 	 	
Marketable Equity Securities:	  			  			  				 			
Agincourt Resources	  	 	37	  	 	10	  	 	—	 	 	 	47	
Other	  	 	10	  	 	33	  	 	—	 	 	 	43	
	  	 	 	  	 	 	  	 	 	 	 	 	 	
	  	 	47	  	 	43	  	 	—	 	 	 	90	
	  	 	 	  	 	 	  	 	 	 	 	 	 	
Other investments, at cost	  	 	9	  	 	—	  	 	—	 	 	 	9	
	  	 	 	  	 	 	  	 	 	 	 	 	 	
	  	$	66	  	$	43	  	$	—	 	 	$	109	
	  	 	 	  	 	 	  	 	 	 	 	 	 	
Long-term:	  			  			  				 			
Marketable Equity Securities:	  			  			  				 			
Canadian Oil Sands Trust	  	$	265	  	$	603	  	$	—	 	 	$	868	
Gabriel Resources, Ltd.	  	 	69	  	 	104	  	 	—	 	 	 	173	
Shore Gold, Inc.	  	 	90	  	 	—	  	 	—	 	 	 	90	
Miramar Mining Corporation	  	 	28	  	 	57	  	 	—	 	 	 	85	
Other	  	 	34	  	 	17	  	 	(4	)	 	 	47	
	  	 	 	  	 	 	  	 	 	 	 	 	 	
	  	 	486	  	 	781	  	 	(4	)	 	 	1,263	
	  	 	 	  	 	 	  	 	 	 	 	 	 	
Other investments, at cost	  	 	12	  	 	—	  	 	—	 	 	 	12	
	  	 	 	  	 	 	  	 	 	 	 	 	 	
Investment in Affiliates:	  			  			  				 			
European Gold Refineries	  	 	17	  	 	—	  	 	—	 	 	 	17	
AGR Matthey Joint Venture	  	 	16	  	 	—	  	 	—	 	 	 	16	
Regis Resources NL	  	 	11	  	 	—	  	 	—	 	 	 	11	
	  	 	 	  	 	 	  	 	 	 	 	 	 	
	  	 	44	  	 	—	  	 	—	 	 	 	44	
	  	 	 	  	 	 	  	 	 	 	 	 	 	
	  	$	542	  	$	781	  	$	(4	)	 	$	1,319	
	  	 	 	  	 	 	  	 	 	 	 	 	 	
During the first quarter of 2007, Newmont acquired an additional interest in Gabriel Resources for approximately $27, obtained Oxiana Ltd. shares following the acquisition of Agincourt Resources by Oxiana Ltd., recognizing a $27 gain, and recognized a $6 impairment of its investment in Queenstake Resources Ltd. for an other-than-temporary decline in value of marketable equity securities and warrants. During the quarter, the unrealized value of the Company’s investments in marketable equity securities declined by $128, primarily related to a decline in the value of Canadian Oil Sands Trust.
 
(13)	 	INVENTORIES	

 	  	At March 31,
2007	  	At December 31,
2006	
In-process	  	$	60	  	$	61	
Concentrate	  	 	10	  	 	6	
Precious metals	  	 	10	  	 	43	
Materials, supplies and other	  	 	301	  	 	272	
	  	 	 	  	 	 	
	  	$	381	  	$	382	
	  	 	 	  	 	 	
During the first quarter of 2007, Newmont recorded aggregate write-downs of $2 included in Costs applicable to sales in Australia/New Zealand to reduce the carrying value of inventories to net realizable value.
 
11

NEWMONT MINING CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited) (Continued)
(dollars in millions, except per share, per ounce and per pound amounts)
 
(14)	 	STOCKPILES AND ORE ON LEACH PADS	

 	  	At March 31,
2007	  	At December 31,
2006	
Current:	  			  			
Stockpiles	  	$	188	  	$	216	
Ore on leach pads	  	 	165	  	 	162	
	  	 	 	  	 	 	
	  	$	353	  	$	378	
	  	 	 	  	 	 	
Long-term:	  			  			
Stockpiles	  	$	524	  	$	527	
Ore on leach pads	  	 	281	  	 	285	
	  	 	 	  	 	 	
	  	$	805	  	$	812	
	  	 	 	  	 	 	
During the first quarter of 2007, Newmont recorded aggregate write-downs of $2 included in Costs applicable to sales in Australia/New Zealand to reduce the carrying value of stockpiles to net realizable value.
 
(15)	 	DEBT	

 	  	At March 31, 2007	  	At December 31, 2006	
 	  	Current	  	Non-Current	  	Current	  	Non-Current	
Sale-leaseback of refractory ore treatment plant	  	$	22	  	$	213	  	$	21	  	$	235	
5 7/8% notes, net of discount	  	 	—	  	 	597	  	 	—	  	 	597	
8 5/8% debentures, net of discount	  	 	—	  	 	217	  	 	—	  	 	217	
Newmont Australia 7 5/8% guaranteed notes, net of premium	  	 	—	  	 	120	  	 	—	  	 	120	
PTNNT project financing facility	  	 	87	  	 	393	  	 	87	  	 	393	
PTNNT shareholder loan	  	 	36	  	 	—	  	 	36	  	 	—	
Yanacocha credit facility	  	 	14	  	 	86	  	 	10	  	 	90	
Yanacocha bonds	  	 	—	  	 	100	  	 	—	  	 	100	
Project financings, capital leases and other	  	 	5	  	 	—	  	 	5	  	 	—	
	  	 	 	  	 	 	  	 	 	  	 	 	
	  	$	164	  	$	1,726	  	$	159	  	$	1,752	
	  	 	 	  	 	 	  	 	 	  	 	 	
Scheduled minimum debt repayments at March 31, 2007 are $138 for the remainder of 2007, $243 in 2008, $125 in 2009, $133 in 2010, $322 in 2011 and $929 thereafter.
 
(16)	 	OTHER LIABILITIES	

 	  	At March 31,
2007	  	At December 31,
2006	
Other current liabilities:	  			  			
Accrued operating costs	  	$	150	  	$	156	
Accrued capital expenditures	  	 	96	  	 	128	
Reclamation and remediation liabilities	  	 	75	  	 	77	
Interest	  	 	48	  	 	34	
Royalties	  	 	23	  	 	39	
Taxes other than income and mining	  	 	18	  	 	22	
Deferred revenue	  	 	23	  	 	9	
Other	  	 	42	  	 	55	
	  	 	 	  	 	 	
	  	$	475	  	$	520	

							
 	  	At March 31,
2007	  	At December 31,
2006	
Other long-term liabilities:	  			  			
Income taxes	  	$	143	  	$	54	
Deferred revenue from the sale of future production	  	 	47	  	 	47	
Other	  	 	36	  	 	34	
	  	 	 	  	 	 	
	  	$	226	  	$	135	

12

NEWMONT MINING CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited) (Continued)
(dollars in millions, except per share, per ounce and per pound amounts)
 
(17)	 	RECLAMATION AND REMEDIATION LIABILITIES (ASSET RETIREMENT OBLIGATIONS)	
At March 31, 2007 and December 31, 2006, $522 and $520, respectively, were accrued for reclamation obligations relating to mineral properties in accordance with SFAS No. 143, “Accounting for Asset Retirement Obligations.” In addition, the Company is involved in several matters concerning environmental obligations associated with former, primarily historic, mining activities. Generally, these matters concern developing and implementing remediation plans at the various sites involved. At March 31, 2007 and December 31, 2006, $81 and $85, respectively, were accrued for such obligations. These amounts are also included in Reclamation and remediation liabilities .
The following is a reconciliation of the liability for asset retirement obligations:

 	  	Three Months Ended March 31,	 	
 	  	2007	 	 	2006	 	
Balance at beginning of period	  	$	605	 	 	$	508	 	
Additions, changes in estimates and other	  	 	—	 	 	 	18	 	
Liabilities settled	  	 	(12	)	 	 	(12	)	
Accretion expense	  	 	10	 	 	 	7	 	
	  	 	 	 	 	 	 	 	
Balance at end of period	  	$	603	 	 	$	521	 	
	  	 	 	 	 	 	 	 	
The current portions of Reclamation and remediation liabilities of $75 and $77 at March 31, 2007 and December 31, 2006, respectively, are included in Other current liabilities .
 
(18)	 	NET CHANGE IN OPERATING ASSETS AND LIABILITIES	
Net cash (used in) provided by operating activities attributable to the net change in operating assets and liabilities is composed of the following:

 	  	Three Months Ended March 31,	 	
 	  	2007	 	 	2006	 	
Decrease (increase) in operating assets:	  				 				
Trade and accounts receivable	  	$	2	 	 	$	(44	)	
Inventories, stockpiles and ore on leach pads	  	 	9	 	 	 	(123	)	
Other assets	  	 	—	 	 	 	(11	)	
Increase (decrease) in operating liabilities:	  				 				
Accounts payable and other accrued liabilities	  	 	(262	)	 	 	16	 	
Reclamation liabilities	  	 	(12	)	 	 	(12	)	
	  	 	 	 	 	 	 	 	
	  	$	(263	)	 	$	(174	)	

13

NEWMONT MINING CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited) (Continued)
(dollars in millions, except per share, per ounce and per pound amounts)
 
(19)	 	SEGMENT INFORMATION	
Financial information relating to Newmont’s segments is as follows:

 	  	Three Months Ended March 31, 2007	
 	  	Nevada	  	Yanacocha	  	Australia/
New Zealand	 	 	Batu
Hijau	  	Africa	  	Other
Operations	
Sales, net:	  			  			  				 			  			  			
Gold	  	$	361	  	$	297	  	$	216	 	 	$	56	  	$	81	  	$	32	
Copper	  	$	—	  	$	—	  	$	—	 	 	$	213	  	$	—	  	$	—	
Cost applicable to sales:	  			  			  				 			  			  			
Gold	  	$	276	  	$	141	  	$	172	 	 	$	28	  	$	43	  	$	16	
Copper	  	$	—	  	$	—	  	$	—	 	 	$	128	  	$	—	  	$	—	
Depreciation, depletion and amortization:	  			  			  				 			  			  			
Gold	  	$	55	  	$	42	  	$	35	 	 	$	6	  	$	10	  	$	5	
Copper	  	$	—	  	$	—	  	$	—	 	 	$	28	  	$	—	  	$	—	
Other	  	$	—	  	$	—	  	$	1	 	 	$	—	  	$	—	  	$	—	
Exploration	  	$	—	  	$	—	  	$	—	 	 	$	—	  	$	—	  	$	—	
Advanced projects, research and development	  	$	—	  	$	2	  	$	1	 	 	$	—	  	$	6	  	$	—	
Write-down of assets	  	$	—	  	$	—	  	$	—	 	 	$	—	  	$	—	  	$	—	
Other income, net	  	$	1	  	$	6	  	$	1	 	 	$	4	  	$	1	  	$	—	
Interest expense, net	  	$	—	  	$	1	  	$	—	 	 	$	10	  	$	1	  	$	—	
Pre-tax income (loss) before minority interest and equity income of affiliates	  	$	27	  	$	112	  	$	(1	)	 	$	72	  	$	22	  	$	24	
Equity income of affiliates	  	$	—	  	$	—	  	$	(1	)	 	$	—	  	$	—	  	$	—	
Capital expenditures	  	$	158	  	$	56	  	$	98	 	 	$	7	  	$	37	  	$	3	
Goodwill	  	$	—	  	$	—	  	$	191	 	 	$	—	  	$	—	  	$	—	
Total assets	  	$	2,742	  	$	1,878	  	$	1,600	 	 	$	2,356	  	$	 1,008	  	$	147	

 	  	Three Months Ended March 31, 2007	
 	  	Total
Operations	 	 	Exploration	 	 	Merchant
Banking	  	Corporate
and Other	 	 	Consolidated	
Sales, net:	  				 				 			  				 			
Gold	  	$	1,043	 	 	$	—	 	 	$	—	  	$	—	 	 	$	1,043	
Copper	  	$	213	 	 	$	—	 	 	$	—	  	$	—	 	 	$	213	
Cost applicable to sales:	  				 				 			  				 			
Gold	  	$	676	 	 	$	—	 	 	$	—	  	$	—	 	 	$	676	
Copper	  	$	128	 	 	$	—	 	 	$	—	  	$	—	 	 	$	128	
Depreciation, depletion and amortization:	  				 				 			  				 			
Gold	  	$	153	 	 	$	—	 	 	$	—	  	$	—	 	 	$	153	
Copper	  	$	28	 	 	$	—	 	 	$	—	  	$	—	 	 	$	28	
Other	  	$	1	 	 	$	—	 	 	$	4	  	$	6	 	 	$	11	
Exploration	  	$	—	 	 	$	40	 	 	$	—	  	$	—	 	 	$	40	
Advanced projects, research and development	  	$	9	 	 	$	—	 	 	$	4	  	$	5	 	 	$	18	
Write-down of assets	  	$	—	 	 	$	—	 	 	$	—	  	$	—	 	 	$	—	
Other income, net	  	$	13	 	 	$	—	 	 	$	58	  	$	(4	)	 	$	67	
Interest expense, net	  	$	12	 	 	$	—	 	 	$	—	  	$	12	 	 	$	24	
Pre-tax income (loss) before minority interest and equity income of affiliates	  	$	256	 	 	$	(40	)	 	$	49	  	$	(79	)	 	$	186	
Equity income of affiliates	  	$	(1	)	 	$	—	 	 	$	1	  	$	—	 	 	$	—	
Capital expenditures	  	$	359	 	 	$	—	 	 	$	—	  	$	3	 	 	$	362	
Goodwill	  	$	191	 	 	$	1,130	 	 	$	1,665	  	$	—	 	 	$	2,986	
Total assets	  	$	9,731	 	 	$	1,298	 	 	$	2,972	  	$	1,174	 	 	$	15,175	
 
14

NEWMONT MINING CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited) (Continued)
(dollars in millions, except per share, per ounce and per pound amounts)

 	  	Three Months Ended March 31, 2006	
 	  	Nevada	  	Yanacocha	  	Australia/
New Zealand	  	Batu
Hijau	 	 	Africa	 	 	Other
Operations	
Sales, net:	  			  			  			  				 				 			
Gold	  	$	288	  	$	427	  	$	187	  	$	39	 	 	$	—	 	 	$	55	
Copper	  	$	—	  	$	—	  	$	—	  	$	137	 	 	$	—	 	 	$	—	
Cost applicable to sales:	  			  			  			  				 				 			
Gold	  	$	206	  	$	124	  	$	128	  	$	15	 	 	$	—	 	 	$	21	
Copper	  	$	—	  	$	—	  	$	—	  	$	65	 	 	$	—	 	 	$	—	
Depreciation, depletion and amortization:	  			  			  			  				 				 			
Gold	  	$	36	  	$	43	  	$	26	  	$	4	 	 	$	—	 	 	$	5	
Copper	  	$	—	  	$	—	  	$	—	  	$	16	 	 	$	—	 	 	$	—	
Other	  	$	—	  	$	—	  	$	1	  	$	—	 	 	$	—	 	 	$	—	
Exploration	  	$	—	  	$	—	  	$	—	  	$	—	 	 	$	—	 	 	$	—	
Advanced projects, research and development	  	$	2	  	$	1	  	$	—	  	$	—	 	 	$	7	 	 	$	—	
Write-down of assets	  	$	—	  	$	—	  	$	—	  	$	—	 	 	$	—	 	 	$	—	
Other income	  	$	4	  	$	4	  	$	1	  	$	(20	)	 	$	—	 	 	$	2	
Interest expense, net	  	$	—	  	$	—	  	$	—	  	$	11	 	 	$	—	 	 	$	—	
Pre-tax income (loss) before minority interest and equity income of affiliates	  	$	47	  	$	259	  	$	29	  	$	46	 	 	$	(7	)	 	$	7	
Equity income of affiliates	  	$	—	  	$	—	  	$	—	  	$	—	 	 	$	—	 	 	$	—	
Capital expenditures	  	$	154	  	$	56	  	$	23	  	$	63	 	 	$	65	 	 	$	2	
Goodwill	  	$	—	  	$	—	  	$	214	  	$	—	 	 	$	—	 	 	$	—	
Total assets from continuing operations	  	$	2,102	  	$	1,665	  	$	1,207	  	$	2,313	 	 	$	737	 	 	$	156	

 	  	Three Months Ended March 31, 2006	
 	  	Total
Operations	 	 	Exploration	 	 	Merchant
Banking	  	Corporate
and Other	 	 	Consolidated	
Sales, net:	  				 				 			  				 			
Gold	  	$	996	 	 	$	—	 	 	$	—	  	$	(1	)	 	$	995	
Copper	  	$	137	 	 	$	—	 	 	$	—	  	$	—	 	 	$	137	
Cost applicable to sales:	  				 				 			  				 			
Gold	  	$	494	 	 	$	—	 	 	$	—	  	$	—	 	 	$	494	
Copper	  	$	65	 	 	$	—	 	 	$	—	  	$	—	 	 	$	65	
Depreciation, depletion and amortization:	  				 				 			  				 			
Gold	  	$	114	 	 	$	—	 	 	$	—	  	$	—	 	 	$	114	
Copper	  	$	16	 	 	$	—	 	 	$	—	  	$	—	 	 	$	16	
Other	  	$	1	 	 	$	1	 	 	$	5	  	$	3	 	 	$	10	
Exploration	  	$	—	 	 	$	33	 	 	$	—	  	$	—	 	 	$	33	
Advanced projects, research and development	  	$	10	 	 	$	—	 	 	$	5	  	$	6	 	 	$	21	
Write-down of assets	  	$	—	 	 	$	—	 	 	$	—	  	$	—	 	 	$	—	
Other income	  	$	(9	)	 	$	1	 	 	$	30	  	$	13	 	 	$	35	
Interest expense, net	  	$	11	 	 	$	—	 	 	$	—	  	$	9	 	 	$	20	
Pre-tax income (loss) before minority interest and equity income of affiliates	  	$	381	 	 	$	(33	)	 	$	18	  	$	(23	)	 	$	343	
Capital expenditures	  	$	363	 	 	$	—	 	 	$	1	  	$	3	 	 	$	367	
Goodwill	  	$	214	 	 	$	1,126	 	 	$	1,562	  	$	—	 	 	$	2,902	
Total assets from continuing operations	  	$	8,180	 	 	$	1,152	 	 	$	2,923	  	$	1,988	 	 	$	14,243	
Assets held for sale	  				 				 			  				 	$	182	
	  				 				 			  				 	 	 	
Total assets	  				 				 			  				 	$	14,425	

15

NEWMONT MINING CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited) (Continued)
(dollars in millions, except per share, per ounce and per pound amounts)
 
(20) CONDENSED CONSOLIDATING FINANCIAL STATEMENTS
Newmont USA, a 100% owned subsidiary of Newmont Mining Corporation, has fully and unconditionally guaranteed the 5 7/8% publicly traded notes. The following condensed consolidating financial statements are provided for Newmont USA, as guarantor, and for Newmont Mining Corporation, as issuer, as an alternative to providing separate financial statements for the guarantor. The accounts of Newmont Mining Corporation are presented using the equity method of accounting for investments in subsidiaries.

 	  	Three Months Ended March 31, 2007	 	
Condensed Consolidating Statement of Income	  	Newmont
Mining
Corporation	 	 	Newmont
USA	 	 	Other
Subsidiaries	 	 	Eliminations	 	 	Newmont
Mining
Corporation
Consolidated	 	
Revenues	  				 				 				 				 				
Sales - gold, net	  	$	—	 	 	$	759	 	 	$	284	 	 	$	—	 	 	$	1,043	 	
Sales - copper, net	  	 	—	 	 	 	213	 	 	 	—	 	 	 	—	 	 	 	213	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
	  	 	—	 	 	 	972	 	 	 	284	 	 	 	—	 	 	 	1,256	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Costs and expenses	  				 				 				 				 				
Costs applicable to sales (exclusive of depreciation, depletion and amortization shown separately below)	  				 				 				 				 				
Gold	  	 	—	 	 	 	470	 	 	 	210	 	 	 	(4	)	 	 	676	 	
Copper	  	 	—	 	 	 	128	 	 	 	—	 	 	 	—	 	 	 	128	 	
Depreciation, depletion and amortization	  	 	—	 	 	 	145	 	 	 	47	 	 	 	—	 	 	 	192	 	
Exploration	  	 	—	 	 	 	26	 	 	 	14	 	 	 	—	 	 	 	40	 	
Advanced projects, research and development	  	 	—	 	 	 	9	 	 	 	9	 	 	 	—	 	 	 	18	 	
General and administrative	  	 	—	 	 	 	31	 	 	 	1	 	 	 	5	 	 	 	37	 	
Write-down of long-lived assets	  	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	
Other	  	 	—	 	 	 	25	 	 	 	(2	)	 	 	(1	)	 	 	22	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
	  	 	—	 	 	 	834	 	 	 	279	 	 	 	—	 	 	 	1,113	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Other income (expense)	  				 				 				 				 				
Other income, net	  	 	2	 	 	 	26	 	 	 	39	 	 	 	—	 	 	 	67	 	
Interest income - intercompany	  	 	31	 	 	 	25	 	 	 	1	 	 	 	(57	)	 	 	—	 	
Interest expense - intercompany	  	 	(2	)	 	 	—	 	 	 	(55	)	 	 	57	 	 	 	—	 	
Interest expense, net	  	 	(9	)	 	 	(12	)	 	 	(3	)	 	 	—	 	 	 	(24	)	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
	  	 	22	 	 	 	39	 	 	 	(18	)	 	 	—	 	 	 	43	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Income (loss) from continuing operations before taxes, minority interest and equity income of affiliates	  	 	22	 	 	 	177	 	 	 	(13	)	 	 	—	 	 	 	186	 	
Income tax (expense) benefit	  	 	(6	)	 	 	(52	)	 	 	(4	)	 	 	—	 	 	 	(62	)	
Minority interest in income of subsidiaries	  	 	—	 	 	 	(55	)	 	 	(4	)	 	 	3	 	 	 	(56	)	
Equity income (loss) of affiliates	  	 	52	 	 	 	—	 	 	 	16	 	 	 	(68	)	 	 	—	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Income from continuing operations	  	 	68	 	 	 	70	 	 	 	(5	)	 	 	(65	)	 	 	68	 	
Loss from discontinued operations	  	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Net income (loss)	  	$	68	 	 	$	70	 	 	$	(5	)	 	$	(65	)	 	$	68	 	

16

NEWMONT MINING CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited) (Continued)
(dollars in millions, except per share, per ounce and per pound amounts)

 	  	Three Months Ended March 31, 2006	 	
Condensed Consolidating Statement of Income	  	Newmont
Mining
Corporation	 	 	Newmont
USA	 	 	Other
Subsidiaries	 	 	Eliminations	 	 	Newmont
Mining
Corporation
Consolidated	 	
Revenues	  				 				 				 				 				
Sales - gold, net	  	$	—	 	 	$	818	 	 	$	177	 	 	$	—	 	 	$	995	 	
Sales - copper, net	  	 	—	 	 	 	137	 	 	 	—	 	 	 	—	 	 	 	137	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
	  	 	—	 	 	 	955	 	 	 	177	 	 	 	—	 	 	 	1,132	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Costs and expenses	  				 				 				 				 				
Costs applicable to sales (exclusive of depreciation, depletion and amortization shown separately below)	  				 				 				 				 				
Gold	  	 	—	 	 	 	372	 	 	 	124	 	 	 	(2	)	 	 	494	 	
Copper	  	 	—	 	 	 	65	 	 	 	—	 	 	 	—	 	 	 	65	 	
Depreciation, depletion and amortization	  	 	—	 	 	 	110	 	 	 	30	 	 	 	—	 	 	 	140	 	
Exploration	  	 	—	 	 	 	25	 	 	 	8	 	 	 	—	 	 	 	33	 	
Advanced projects, research and development	  	 	—	 	 	 	9	 	 	 	12	 	 	 	—	 	 	 	21	 	
General and administrative	  	 	—	 	 	 	34	 	 	 	2	 	 	 	1	 	 	 	37	 	
Other	  	 	—	 	 	 	12	 	 	 	2	 	 	 	—	 	 	 	14	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
	  	 	—	 	 	 	627	 	 	 	178	 	 	 	(1	)	 	 	804	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Other income (expense)	  				 				 				 				 				
Other income (expense), net	  	 	2	 	 	 	1	 	 	 	32	 	 	 	—	 	 	 	35	 	
Interest income - intercompany	  	 	29	 	 	 	13	 	 	 	—	 	 	 	(42	)	 	 	—	 	
Interest expense - intercompany	  	 	(2	)	 	 	—	 	 	 	(40	)	 	 	42	 	 	 	—	 	
Interest expense, net	  	 	(6	)	 	 	(12	)	 	 	(2	)	 	 	—	 	 	 	(20	)	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
	  	 	23	 	 	 	2	 	 	 	(10	)	 	 	—	 	 	 	15	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Income from continuing operations before taxes, minority interest and equity income of affiliates	  	 	23	 	 	 	330	 	 	 	(11	)	 	 	1	 	 	 	343	 	
Income tax (expense) benefit	  	 	(3	)	 	 	(82	)	 	 	48	 	 	 	—	 	 	 	(37	)	
Minority interest in income of subsidiaries	  	 	—	 	 	 	(99	)	 	 	(11	)	 	 	11	 	 	 	(99	)	
Equity income (loss) of affiliates	  	 	189	 	 	 	—	 	 	 	34	 	 	 	(223	)	 	 	—	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Income from continuing operations	  	 	209	 	 	 	149	 	 	 	60	 	 	 	(211	)	 	 	207	 	
Income from discontinued operations	  	 	—	 	 	 	2	 	 	 	—	 	 	 	—	 	 	 	2	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Net income (loss)	  	$	209	 	 	$	151	 	 	$	60	 	 	$	(211	)	 	$	209	 	

17

NEWMONT MINING CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited) (Continued)
(dollars in millions, except per share, per ounce and per pound amounts)

 	  	At March 31, 2007	
Condensed Consolidating Balance Sheets	  	Newmont
Mining
Corporation	 	 	Newmont
USA	 	 	Other
Subsidiaries	  	Eliminations	 	 	Newmont
Mining
Corporation
Consolidated	
Assets	  				 				 			  				 			
Cash and cash equivalents	  	$	—	 	 	$	645	 	 	$	141	  	$	—	 	 	$	786	
Marketable securities and other short-term investments	  	 	1	 	 	 	13	 	 	 	116	  	 	—	 	 	 	130	
Trade receivables	  	 	—	 	 	 	272	 	 	 	3	  	 	—	 	 	 	275	
Accounts receivable	  	 	1,793	 	 	 	687	 	 	 	519	  	 	(2,857	)	 	 	142	
Inventories	  	 	—	 	 	 	316	 	 	 	65	  	 	—	 	 	 	381	
Stockpiles and ore on leach pads	  	 	—	 	 	 	300	 	 	 	53	  	 	—	 	 	 	353	
Deferred income tax assets	  	 	—	 	 	 	90	 	 	 	59	  	 	—	 	 	 	149	
Other current assets	  	 	1	 	 	 	49	 	 	 	29	  	 	—	 	 	 	79	
	  	 	 	 	 	 	 	 	 	 	 	  	 	 	 	 	 	 	
Current assets	  	 	1,795	 	 	 	2,372	 	 	 	985	  	 	(2,857	)	 	 	2,295	
Property, plant and mine development, net	  	 	—	 	 	 	4,796	 	 	 	2,256	  	 	(16	)	 	 	7,036	
Investments	  	 	—	 	 	 	—	 	 	 	1,230	  	 	—	 	 	 	1,230	
Investments in subsidiaries	  	 	6,133	 	 	 	—	 	 	 	4,935	  	 	(11,068	)	 	 	—	
Long-term stockpiles and ore on leach pads	  	 	—	 	 	 	758	 	 	 	47	  	 	—	 	 	 	805	
Deferred income tax assets	  	 	(6	)	 	 	522	 	 	 	122	  	 	—	 	 	 	638	
Other long-term assets	  	 	1,788	 	 	 	1,233	 	 	 	85	  	 	(2,921	)	 	 	185	
Goodwill	  	 	—	 	 	 	—	 	 	 	2,986	  	 	—	 	 	 	2,986	
	  	 	 	 	 	 	 	 	 	 	 	  	 	 	 	 	 	 	
Total assets	  	$	9,710	 	 	$	9,681	 	 	$	12,646	  	$	(16,862	)	 	$	15,175	
	  	 	 	 	 	 	 	 	 	 	 	  	 	 	 	 	 	 	
Liabilities	  				 				 			  				 			
Current portion of long-term debt	  	$	—	 	 	$	159	 	 	$	5	  	$	—	 	 	$	164	
Accounts payable	  	 	90	 	 	 	2,182	 	 	 	876	  	 	(2,857	)	 	 	291	
Employee related benefits	  	 	—	 	 	 	128	 	 	 	33	  	 	—	 	 	 	161	
Derivative instruments	  	 	—	 	 	 	41	 	 	 	—	  	 	—	 	 	 	41	
Income and mining taxes	  	 	(6	)	 	 	15	 	 	 	325	  	 	—	 	 	 	334	
Other current liabilities	  	 	18	 	 	 	294	 	 	 	164	  	 	(1	)	 	 	475	
	  	 	 	 	 	 	 	 	 	 	 	  	 	 	 	 	 	 	
Current liabilities	  	 	102	 	 	 	2,819	 	 	 	1,403	  	 	(2,858	)	 	 	1,466	
Long-term debt	  	 	597	 	 	 	1,009	 	 	 	120	  	 	—	 	 	 	1,726	
Reclamation and remediation liabilities	  	 	—	 	 	 	392	 	 	 	136	  	 	—	 	 	 	528	
Deferred income tax liabilities	  	 	53	 	 	 	184	 	 	 	307	  	 	25	 	 	 	569	
Employee-related benefits	  	 	1	 	 	 	281	 	 	 	28	  	 	—	 	 	 	310	
Other long-term liabilities	  	 	261	 	 	 	155	 	 	 	2,892	  	 	(3,082	)	 	 	226	
	  	 	 	 	 	 	 	 	 	 	 	  	 	 	 	 	 	 	
Total liabilities	  	 	1,014	 	 	 	4,840	 	 	 	4,886	  	 	(5,915	)	 	 	4,825	
	  	 	 	 	 	 	 	 	 	 	 	  	 	 	 	 	 	 	
Minority interest in subsidiaries	  	 	—	 	 	 	1,171	 	 	 	376	  	 	(384	)	 	 	1,163	
	  	 	 	 	 	 	 	 	 	 	 	  	 	 	 	 	 	 	
Stockholders’ equity	  				 				 			  				 			
Preferred stock	  	 	—	 	 	 	—	 	 	 	61	  	 	(61	)	 	 	—	
Common stock	  	 	680	 	 	 	—	 	 	 	—	  	 	—	 	 	 	680	
Additional paid-in capital	  	 	6,235	 	 	 	2,219	 	 	 	5,142	  	 	(6,870	)	 	 	6,726	
Accumulated other comprehensive income (loss)	  	 	582	 	 	 	(53	)	 	 	410	  	 	(357	)	 	 	582	
Retained earnings	  	 	1,199	 	 	 	1,504	 	 	 	1,771	  	 	(3,275	)	 	 	1,199	
	  	 	 	 	 	 	 	 	 	 	 	  	 	 	 	 	 	 	
Total stockholders’ equity	  	 	8,696	 	 	 	3,670	 	 	 	7,384	  	 	(10,563	)	 	 	9,187	
	  	 	 	 	 	 	 	 	 	 	 	  	 	 	 	 	 	 	
Total liabilities and stockholders’ equity	  	$	9,710	 	 	$	9,681	 	 	$	12,646	  	$	(16,862	)	 	$	15,175	

18

NEWMONT MINING CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited) (Continued)
(dollars in millions, except per share, per ounce and per pound amounts)

 	  	At December 31, 2006	
Condensed Consolidating Balance Sheets	  	Newmont
Mining
Corporation	  	Newmont
USA	 	 	Other
Subsidiaries	  	Eliminations	 	 	Newmont
Mining
Corporation
Consolidated	
Assets	  			  				 			  				 			
Cash and cash equivalents	  	$	—	  	$	1,040	 	 	$	126	  	$	—	 	 	$	1,166	
Marketable securities and other short-term investments	  	 	1	  	 	28	 	 	 	80	  	 	—	 	 	 	109	
Trade receivables	  	 	—	  	 	139	 	 	 	3	  	 	—	 	 	 	142	
Accounts receivable	  	 	1,817	  	 	587	 	 	 	646	  	 	(2,834	)	 	 	216	
Inventories	  	 	—	  	 	296	 	 	 	86	  	 	—	 	 	 	382	
Stockpiles and ore on leach pads	  	 	—	  	 	339	 	 	 	39	  	 	—	 	 	 	378	
Deferred income tax assets	  	 	—	  	 	100	 	 	 	56	  	 	—	 	 	 	156	
Other current assets	  	 	—	  	 	66	 	 	 	27	  	 	—	 	 	 	93	
	  	 	 	  	 	 	 	 	 	 	  	 	 	 	 	 	 	
Current assets	  	 	1,818	  	 	2,595	 	 	 	1,063	  	 	(2,834	)	 	 	2,642	
Property, plant and mine development, net	  	 	—	  	 	4,740	 	 	 	2,123	  	 	(16	)	 	 	6,847	
Investments	  	 	—	  	 	281	 	 	 	1,038	  	 	—	 	 	 	1,319	
Investments in subsidiaries	  	 	6,256	  	 	111	 	 	 	4,347	  	 	(10,714	)	 	 	—	
Long-term stockpiles and ore on leach pads	  	 	—	  	 	756	 	 	 	56	  	 	—	 	 	 	812	
Deferred income tax assets	  	 	43	  	 	482	 	 	 	274	  	 	—	 	 	 	799	
Other long-term assets	  	 	1,749	  	 	1,104	 	 	 	198	  	 	(2,873	)	 	 	178	
Goodwill	  	 	—	  	 	—	 	 	 	3,004	  	 	—	 	 	 	3,004	
	  	 	 	  	 	 	 	 	 	 	  	 	 	 	 	 	 	
Total assets	  	$	9,866	  	$	10,069	 	 	$	12,103	  	$	(16,437	)	 	$	15,601	
	  	 	 	  	 	 	 	 	 	 	  	 	 	 	 	 	 	
Liabilities	  			  				 			  				 			
Current portion of long-term debt	  	$	—	  	$	154	 	 	$	5	  	$	—	 	 	$	159	
Accounts payable	  	 	47	  	 	2,376	 	 	 	750	  	 	(2,833	)	 	 	340	
Employee related benefits	  	 	—	  	 	147	 	 	 	35	  	 	—	 	 	 	182	
Derivative instruments	  	 	—	  	 	173	 	 	 	1	  	 	—	 	 	 	174	
Income and mining taxes	  	 	85	  	 	(54	)	 	 	333	  	 	—	 	 	 	364	
Other current liabilities	  	 	9	  	 	360	 	 	 	152	  	 	(1	)	 	 	520	
	  	 	 	  	 	 	 	 	 	 	  	 	 	 	 	 	 	
Current liabilities	  	 	141	  	 	3,156	 	 	 	1,276	  	 	(2,834	)	 	 	1,739	
Long-term debt	  	 	597	  	 	1,035	 	 	 	120	  	 	—	 	 	 	1,752	
Reclamation and remediation liabilities	  	 	—	  	 	408	 	 	 	120	  	 	—	 	 	 	528	
Deferred income tax liabilities	  	 	53	  	 	187	 	 	 	438	  	 	25	 	 	 	703	
Employee-related benefits	  	 	1	  	 	283	 	 	 	25	  	 	—	 	 	 	309	
Other long-term liabilities	  	 	258	  	 	145	 	 	 	2,752	  	 	(3,020	)	 	 	135	
	  	 	 	  	 	 	 	 	 	 	  	 	 	 	 	 	 	
Total liabilities	  	 	1,050	  	 	5,214	 	 	 	4,731	  	 	(5,829	)	 	 	5,166	
	  	 	 	  	 	 	 	 	 	 	  	 	 	 	 	 	 	
Minority interest in subsidiaries	  	 	—	  	 	1,140	 	 	 	343	  	 	(385	)	 	 	1,098	
	  	 	 	  	 	 	 	 	 	 	  	 	 	 	 	 	 	
Stockholders’ equity	  			  				 			  				 			
Preferred stock	  	 	—	  	 	—	 	 	 	61	  	 	(61	)	 	 	—	
Common stock	  	 	677	  	 	—	 	 	 	—	  	 	—	 	 	 	677	
Additional paid-in capital	  	 	6,182	  	 	2,219	 	 	 	5,167	  	 	(6,865	)	 	 	6,703	
Accumulated other comprehensive income (loss)	  	 	673	  	 	19	 	 	 	427	  	 	(446	)	 	 	673	
Retained earnings	  	 	1,284	  	 	1,477	 	 	 	1,374	  	 	(2,851	)	 	 	1,284	
	  	 	 	  	 	 	 	 	 	 	  	 	 	 	 	 	 	
Total stockholders’ equity	  	 	8,606	  	 	3,715	 	 	 	7,029	  	 	(10,013	)	 	 	9,337	
	  	 	 	  	 	 	 	 	 	 	  	 	 	 	 	 	 	
Total liabilities and stockholders’ equity	  	$	9,866	  	$	10,069	 	 	$	12,103	  	$	(16,437	)	 	$	15,601	

19

NEWMONT MINING CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited) (Continued)
(dollars in millions, except per share, per ounce and per pound amounts)

 	  	Three Months Ended March 31, 2007	 	
Condensed Consolidating Statement of Cash Flows	  	Newmont
Mining
Corporation	 	 	Newmont
USA	 	 	Other
Subsidiaries	 	 	Eliminations	 	 	Newmont
Mining
Corporation
Consolidated	 	
Operating activities:	  				 				 				 				 				
Net income (loss)	  	$	68	 	 	$	70	 	 	$	(5	)	 	$	(65	)	 	$	68	 	
Adjustments to reconcile net income to net cash provided by operating activities	  	 	(2	)	 	 	154	 	 	 	36	 	 	 	65	 	 	 	253	 	
Net change in operating assets and liabilities	  	 	(40	)	 	 	(205	)	 	 	(18	)	 	 	—	 	 	 	(263	)	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Net cash from operations	  	 	26	 	 	 	19	 	 	 	13	 	 	 	—	 	 	 	58	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Investing activities:	  				 				 				 				 				
Additions to property, plant and mine development	  	 	—	 	 	 	(228	)	 	 	(134	)	 	 	—	 	 	 	(362	)	
Investments in marketable debt and equity securities	  	 	—	 	 	 	(124	)	 	 	(29	)	 	 	—	 	 	 	(153	)	
Proceeds from sale of marketable debt and equity securities	  	 	—	 	 	 	124	 	 	 	—	 	 	 	—	 	 	 	124	 	
Other	  	 	—	 	 	 	2	 	 	 	(1	)	 	 	—	 	 	 	1	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Net cash used in investing activities	  	 	—	 	 	 	(226	)	 	 	(164	)	 	 	—	 	 	 	(390	)	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Financing activities:	  				 				 				 				 				
Net borrowings (repayments)	  	 	5	 	 	 	(186	)	 	 	160	 	 	 	—	 	 	 	(21	)	
Dividends paid to common stockholders	  	 	(43	)	 	 	—	 	 	 	(2	)	 	 	—	 	 	 	(45	)	
Dividends paid to minority interests	  	 	—	 	 	 	(1	)	 	 	—	 	 	 	—	 	 	 	(1	)	
Proceeds from stock issuance and other	  	 	9	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	9	 	
Change in restricted cash and other	  	 	3	 	 	 	(1	)	 	 	6	 	 	 	—	 	 	 	8	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Net cash (used in) provided from financing activities	  	 	(26	)	 	 	(188	)	 	 	164	 	 	 	—	 	 	 	(50	)	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Effect of exchange rate changes on cash	  	 	—	 	 	 	—	 	 	 	2	 	 	 	—	 	 	 	2	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Net change in cash and cash equivalents	  	 	—	 	 	 	(395	)	 	 	15	 	 	 	—	 	 	 	(380	)	
Cash and cash equivalents at beginning of period	  	 	—	 	 	 	1,040	 	 	 	126	 	 	 	—	 	 	 	1,166	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Cash and cash equivalents at end of period	  	$	—	 	 	$	645	 	 	$	141	 	 	$	—	 	 	$	786	 	

20

NEWMONT MINING CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited) (Continued)
(dollars in millions, except per share, per ounce and per pound amounts)

 	  	Three Months Ended March 31, 2006	 	
Condensed Consolidating Statement of Cash Flows	  	Newmont
Mining
Corporation	 	 	Newmont
USA	 	 	Other
Subsidiaries	 	 	Eliminations	 	 	Newmont
Mining
Corporation
Consolidated	 	
Operating activities:	  				 				 				 				 				
Net income (loss)	  	$	209	 	 	$	151	 	 	$	60	 	 	$	(211	)	 	$	209	 	
Adjustments to reconcile net income to net cash provided by operating activities	  	 	(195	)	 	 	222	 	 	 	(40	)	 	 	211	 	 	 	198	 	
Net change in operating assets and liabilities	  	 	(16	)	 	 	(182	)	 	 	24	 	 	 	—	 	 	 	(174	)	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Net cash (used in) provided from continuing operating activities	  	 	(2	)	 	 	191	 	 	 	44	 	 	 	—	 	 	 	233	 	
Net cash provided from discontinued operations	  	 	—	 	 	 	2	 	 	 	—	 	 	 	—	 	 	 	2	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Net cash (used in) provided from operations	  	 	(2	)	 	 	193	 	 	 	44	 	 	 	—	 	 	 	235	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Investing activities:	  				 				 				 				 				
Additions to property, plant and mine development	  	 	—	 	 	 	(279	)	 	 	(88	)	 	 	—	 	 	 	(367	)	
Investments in marketable debt and equity securities	  	 	—	 	 	 	(671	)	 	 	(1	)	 	 	—	 	 	 	(672	)	
Proceeds from sale of marketable debt and equity securities	  	 	—	 	 	 	968	 	 	 	2	 	 				 	 	970	 	
Acquisitions	  	 	—	 	 	 	—	 	 	 	(187	)	 	 	—	 	 	 	(187	)	
Other	  	 	—	 	 	 	2	 	 	 	—	 	 	 	—	 	 	 	2	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Net cash provided from (used in) investing activities of continuing operations	  	 	—	 	 	 	20	 	 	 	(274	)	 	 	—	 	 	 	(254	)	
Net cash used in investing activities of discontinued operations	  	 	—	 	 	 	(3	)	 	 	—	 	 	 	—	 	 	 	(3	)	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Net cash provided from (used in) investing activities	  	 	—	 	 	 	17	 	 	 	(274	)	 	 	—	 	 	 	(257	)	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Financing activities:	  				 				 				 				 				
Net borrowings (repayments)	  	 	1	 	 	 	(261	)	 	 	240	 	 	 	—	 	 	 	(20	)	
Dividends paid to common stockholders	  	 	(42	)	 	 	—	 	 	 	(3	)	 	 	—	 	 	 	(45	)	
Dividends paid to minority interests	  	 	—	 	 	 	(45	)	 	 	—	 	 	 	—	 	 	 	(45	)	
Proceeds from stock issuance	  	 	38	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	38	 	
Change in restricted cash and other	  	 	5	 	 	 	(13	)	 	 	—	 	 	 	—	 	 	 	(8	)	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Net cash provided from (used in) financing activities	  	 	2	 	 	 	(319	)	 	 	237	 	 	 	—	 	 	 	(80	)	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Effect of exchange rate changes on cash	  	 	—	 	 	 	2	 	 	 	(3	)	 	 	—	 	 	 	(1	)	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Net change in cash and cash equivalents	  	 	—	 	 	 	(107	)	 	 	4	 	 	 	—	 	 	 	(103	)	
Cash and cash equivalents at beginning of period	  	 	1	 	 	 	979	 	 	 	102	 	 	 	—	 	 	 	1,082	 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Cash and cash equivalents at end of period	  	$	1	 	 	$	872	 	 	$	106	 	 	$	—	 	 	$	979	 	

21

NEWMONT MINING CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited) (Continued)
(dollars in millions, except per share, per ounce and per pound amounts)
 
(21)	 	COMMITMENTS AND CONTINGENCIES	
General
The Company follows FAS No. 5, “Accounting for Contingencies,” in determining its accruals and disclosures with respect to loss contingencies. Accordingly, estimated loss contingencies are accrued by a charge to income when information available prior to issuance of the financial statements indicates that it is probable (greater than a 75% probability) that a liability could be incurred and the amount of the loss can be reasonably estimated. Legal expenses associated with the contingency are expensed as incurred. If a loss contingency is not probable or reasonably estimable, disclosure of the loss contingency is made in the financial statements when it is at least reasonably possible that a material loss could be incurred.
Operating Segments
The Company’s operating segments are identified in Note 19. Except as noted in this paragraph, all of the Company’s commitments and contingencies specifically described in this Note 21 relate to the Corporate and Other reportable segment. The Nevada Operations matters under Newmont USA Limited relate to the Nevada reportable segment. The PT Newmont Minahasa Raya matters relate to the Other Operations reportable segment. The Yanacocha matters relate to the Yanacocha reportable segment. The Newmont Yandal Operations Pty Limited and the Newmont Australia Limited matters relate to the Australia/New Zealand reportable segment.
Environmental Matters
The Company’s mining and exploration activities are subject to various laws and regulations governing the protection of the environment. These laws and regulations are continually changing and are generally becoming more restrictive. The Company conducts its operations so as to protect the public health and environment and believes its operations are in compliance with applicable laws and regulations in all material respects. The Company has made, and expects to make in the future, expenditures to comply with such laws and regulations, but cannot predict the full amount of such future expenditures.
Estimated future reclamation costs are based principally on legal and regulatory requirements. At March 31, 2007 and December 31, 2006, $522 and $520, respectively, were accrued for reclamation costs relating to mineral properties in accordance with FAS No. 143, “Accounting for Asset Retirement Obligations.” See Note 17.
In addition, the Company is involved in several matters concerning environmental obligations associated with former mining activities. Generally, these matters concern developing and implementing remediation plans at the various sites involved. The Company believes that the related environmental obligations associated with these sites are similar in nature with respect to the development of remediation plans, their risk profile and the compliance required to meet general environmental standards. Based upon the Company’s best estimate of its liability for these matters, $81 and $85 were accrued for such obligations at March 31, 2007 and December 31, 2006, respectively. These amounts are included in Other current liabilities and Reclamation and remediation liabilities . Depending upon the ultimate resolution of these matters, the Company believes that it is reasonably possible that the liability for these matters could be as much as 93% greater or 28% lower than the amount accrued at March 31, 2007. The amounts accrued for these matters are reviewed periodically based upon facts and circumstances available at the time. Changes in estimates are recorded in Other expense, net in the period estimates are revised.
Details about certain of the more significant matters involved are discussed below.
Dawn Mining Company LLC (“Dawn”) - 51% Newmont Owned
Midnite Mine Site.  Dawn previously leased an open pit uranium mine, currently inactive, on the Spokane Indian Reservation in the State of Washington. The mine site is subject to regulation by agencies of the U.S. Department of Interior (the Bureau of Indian Affairs and the Bureau of Land Management), as well as the United States Environmental Protection Agency (“EPA”).
In 1991, Dawn’s mining lease at the mine was terminated. As a result, Dawn was required to file a formal mine closure and reclamation plan. The Department of Interior commenced an analysis of Dawn’s proposed plan and alternate closure and reclamation plans for the mine. Work on this analysis has been suspended indefinitely. In mid-2000, the mine was included on the National Priorities List under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”). In March 2003, the EPA notified Dawn and Newmont that it had thus far expended $12 on the Remedial Investigation/Feasibility Study under CERCLA
 
22

NEWMONT MINING CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited) (Continued)
(dollars in millions, except per share, per ounce and per pound amounts)
 
(“RI/FS”). In October 2005, the EPA issued the RI/FS on this property in which it indicated a preferred remedy estimated to cost approximately $150. Newmont and Dawn filed comments on the RI/FS with the EPA in January 2006. On October 3, 2006, the EPA issued a final Record of Decision in which it formally selected the preferred remedy identified in the RI/FS.
On January 28, 2005, the EPA filed a lawsuit against Dawn and Newmont under CERCLA in the U.S. District Court for the Eastern District of Washington. The EPA has asserted that Dawn and Newmont are liable for reclamation or remediation work and costs at the mine. Dawn does not have sufficient funds to pay for the reclamation plan it proposed or for any alternate plan, or for any additional remediation work or costs at the mine. Newmont intends to vigorously contest any claims as to its liability.
Newmont cannot reasonably predict the likelihood or outcome of this lawsuit or any other action against Dawn or Newmont arising from this matter.
Dawn Mill Site.  Dawn also owns a uranium mill site facility, located on private land near Ford, Washington, which is subject to state and federal regulation. In late 1999, Dawn sought and later received state approval for a revised closure plan that expedites the reclamation process at the site. The currently approved plan for the site is guaranteed by Newmont.
Idarado Mining Company (“Idarado”) - 80.1% Newmont Owned
In July 1992, Newmont and Idarado signed a consent decree with the State of Colorado (“State”), which was agreed to by the U.S. District Court of Colorado, to settle a lawsuit brought by the State under CERCLA.
Idarado agreed in the consent decree to undertake specified remediation work at its former mining site in the Telluride/Ouray area of Colorado. Remediation work at this property is substantially complete. If the remediation does not achieve specific performance objectives defined in the consent decree, the State may require Idarado to implement supplemental activities at the site, also as defined in the consent decree. Idarado and Newmont obtained a $6 reclamation bond to secure their potential obligations under the consent decree. In addition, Idarado settled natural resources damages and past and future response costs, and agreed to habitat enhancement work under the consent decree. All of this work is substantially complete.
Newmont Capital Limited - 100% Newmont Owned
In February 1999, the EPA placed the Lava Cap mine site in Nevada County, California on the National Priorities List under CERCLA. The EPA then initiated a RI/FS under CERCLA to determine environmental conditions and remediation options at the site.
Newmont Capital, formerly known as Franco-Nevada Mining Corporation, Inc., owned the property for approximately three years from 1984 to 1986 but never mined or conducted exploration at the site. The EPA asserts that Newmont Capital is responsible for clean up costs incurred at the site. Newmont Capital and the EPA have entered into an agreement tolling the statute of limitations until December 31, 2007 to facilitate on-going settlement negotiations with respect to potential claims under CERCLA. Based on Newmont Capital’s limited involvement at Lava Cap, it does not believe it has any liability for environmental conditions at the site, and intends to vigorously defend any formal claims by the EPA. Newmont cannot reasonably predict the likelihood or outcome of any future action arising from this matter.
Newmont USA Limited - 100% Newmont Owned
Pinal Creek.  Newmont is a defendant in a lawsuit brought on November 5, 1991 in U.S. District Court in Arizona by the Pinal Creek Group, alleging that the company and others are responsible for some portion of costs incurred to address groundwater contamination emanating from copper mining operations located in the area of Globe and Miami, Arizona. Two former subsidiaries of Newmont, Pinto Valley Copper Corporation and Magma Copper Company (now known as BHP Copper Inc.), owned some of the mines in the area between 1983 and 1987. The court has dismissed plaintiffs’ claims seeking to hold Newmont liable for the acts or omissions of its former subsidiaries. Based on information presently available, Newmont believes it has strong defenses to plaintiffs’ remaining claims, including, without limitation, that Newmont’s agents did not participate in any pollution causing activities; that Newmont’s liabilities, if any, were contractually transferred to one of the plaintiffs; that portions of plaintiffs’ claimed damages are not recoverable; and that Newmont’s equitable share of liability, if any, would be immaterial. While Newmont has denied liability and is vigorously defending these claims, we cannot reasonably predict the final outcome of this lawsuit.
Grass Valley . On February 3, 2004, the City of Grass Valley, California brought suit against Newmont under CERCLA in the U.S. District Court for the Northern District of California. This matter involves an abandoned mine adit on property previously owned
 
23

NEWMONT MINING CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited) (Continued)
(dollars in millions, except per share, per ounce and per pound amounts)
 
by a predecessor of Newmont and currently owned by the City of Grass Valley. The complaint alleges that the adit is discharging metals-bearing water into a stream on the property, in concentrations in excess of current EPA drinking water standards. Newmont cannot reasonably predict the likely outcome of this matter.
Gray Eagle Mine Site . By letter dated September 3, 2002, the EPA notified Newmont that the EPA had expended $3 in response costs to address environmental conditions associated with a historic tailings pile located at the Grey Eagle Mine site near Happy Camp, California, and requested that Newmont pay those costs. The EPA has identified four potentially responsible parties, including Newmont. Newmont does not believe it has any liability for environmental conditions at the Grey Eagle Mine site, and intends to vigorously defend any formal claims by the EPA. Newmont cannot reasonably predict the likelihood or outcome of any future action against it arising from this matter.
PT Newmont Minahasa Raya (“PTNMR”) - 80% Newmont Owned
In July 2004, a criminal complaint was filed against PTNMR, the Newmont subsidiary that operated the Minahasa mine in Indonesia, alleging environmental pollution relating to submarine tailings placement into nearby Buyat Bay. The Indonesian police detained five PTNMR employees during September and October of 2004. The police investigation and the detention of PTNMR’s employees was declared illegal by the South Jakarta District Court in December 2004, but in March 2005, the Indonesian Supreme Court upheld the legality of the police investigation, and the police turned their evidence over to the local prosecutor. In July 2005, the prosecutor filed an indictment against PTNMR and its President Director, alleging environmental pollution at Buyat Bay. After the court rejected motions to dismiss the proceeding, the trial proceeded and all evidence, including that of the defense, was presented in court as of September 2006. In November 2006 the prosecution filed its charge, seeking a three-year jail sentence for PTNMR’s President Director plus a nominal fine. In addition, the prosecution has recommended a nominal fine against PTNMR. The defense filed responses in January 2007, and final briefing was completed in March 2007. On April 24, 2007, the court entered its verdict acquitting PTNMR and its President Director of all charges.
On March 9, 2005, the Indonesian Ministry of the Environment filed a civil lawsuit against PTNMR and its President Director in relation to these allegations, seeking in excess of $100 in monetary damages. In October 2005, PTNMR filed an objection to the court’s jurisdiction, contending that the Government previously agreed to resolve any disputes through out-of-court conciliation or arbitration. The Court upheld PTNMR’s objection and dismissed the case in November 2005. The Government filed a notice of appeal of this ruling. On February 16, 2006, PTNMR and the Government of the Republic of Indonesia signed an agreement settling the civil lawsuit. Under the terms of the agreement, the Government and PTNMR will nominate members to an independent scientific panel that will develop and implement a ten-year environmental monitoring and assessment program to make a definitive, scientific conclusion regarding the condition of Buyat Bay. PTNMR is required to fund specific remedial measures if, as a result of its mining operations, pollution has occurred. The agreement also provides for enhanced community development programs in North Sulawesi. PTNMR provided initial funding of $12 to cover the cost of the monitoring and community development programs paid in the first quarter of 2007 and which was included in Other current liabilities at December 31, 2006. Over a ten-year period, PTNMR will contribute an additional $18. The present value of $13 is included in Other long-term liabilities at December 31, 2006. The funds will be managed by an organization governed by interested stakeholders. Accountability for the fund will be ensured through yearly reports that will be made available to the public. The transparency of the scientific panel’s activities will also be assured through annual reports to the public. Pursuant to the agreement, the civil lawsuit against PTNMR has been terminated. The scientific panel held its first meeting in February 2007 and has now commenced its work program.
Independent sampling and testing of Buyat Bay water and fish, as well as area residents, conducted by the World Health Organization and the Australian Commonwealth Scientific and Industrial Research Organization, confirm that PTNMR has not polluted the Buyat Bay environment, and, therefore, has not adversely affected the fish in Buyat Bay or the health of nearby residents. The Company remains steadfast that it has not caused pollution or health problems and will continue to vigorously defend itself against these allegations.
Resurrection Mining Company (“Resurrection”) - 100% Newmont Owned
Newmont, Resurrection and other defendants were named in lawsuits filed by the State of Colorado under CERCLA in 1983, which were subsequently consolidated with a lawsuit filed by EPA in 1986. These proceedings sought to compel the defendants to remediate the impacts of pre-existing, historic mining activities near Leadville, Colorado, which date back to the mid-1800s, and which the government agencies claim were causing substantial environmental problems in the area.
 
24

NEWMONT MINING CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited) (Continued)
(dollars in millions, except per share, per ounce and per pound amounts)
 
In 1988 and 1989, the EPA issued administrative orders with respect to one area on the site and the defendants have collectively implemented those orders by constructing a water treatment plant, which was placed in operation in early 1992. Remaining remedial work for this area consists of water treatment plant operation and continuing environmental monitoring and maintenance activities. Newmont and Resurrection are currently responsible for 50% of these costs, but their share of such costs could increase in the event other defendants become unable to pay their share of such costs. On August 9, 2005, ASARCO LLC, the party responsible for the other 50% of these costs, filed for Chapter 11 bankruptcy in the United States Bankruptcy Court for the Southern District of Texas. The company is evaluating the effect that the ASARCO bankruptcy could have on its obligations.
The parties also have entered into a consent decree with respect to the remaining areas at the site, which apportions liabilities and responsibilities for these areas. The EPA has approved remedial actions for selected components of Resurrection’s portion of the site, which were initiated in 1995. The EPA has not yet selected the final remedy for the site. Accordingly, Newmont cannot yet determine the full extent or cost of its share of the remedial action that will be required. The government agencies may also seek to recover for damages to natural resources. In March 1999, the parties entered into a Memorandum of Understanding (“MOU”) to facilitate the settlement of natural resources damages claims under CERCLA for the upper Arkansas River Basin. In January 2004, an MOU report was issued that evaluated the extent of natural resource damages and possible restoration activities that might be required, which Resurrection and other parties could potentially be required to fund.
Other Legal Matters
Minera Yanacocha S.R.L. (“Yanacocha”) - 51.35% Newmont Owned
Choropampa . In June 2000, a transport contractor of Yanacocha spilled approximately 151 kilograms of elemental mercury near the town of Choropampa, Peru, which is located 53 miles (85 kilometers) southwest of the Yanacocha mine. Elemental mercury is not used in Yanacocha’s operations but is a by-product of gold mining and was sold to a Lima firm for use in medical instruments and industrial applications. A comprehensive health and environmental remediation program was undertaken by Yanacocha in response to the incident. In August 2000, Yanacocha paid under protest a fine of 1,740,000 Peruvian soles (approximately $0.5) to the Peruvian government. Yanacocha has entered into settlement agreements with a number of individuals impacted by the incident. As compensation for the disruption and inconvenience caused by the incident Yanacocha entered into agreements with and provided a variety of public works in the three communities impacted by this incident. Yanacocha cannot predict the likelihood of additional expenditures related to this matter.
Yanacocha, various wholly-owned subsidiaries of Newmont, and other defendants have been named in lawsuits filed by approximately 1,100 Peruvian citizens in Denver District Court for the State of Colorado. These actions seek compensatory damages based on claims associated with the elemental mercury spill incident. In February 2005, Yanacocha and the various Newmont defendants answered the complaint in the Denver District Court. The parties in these cases have agreed to submit these matters to binding arbitration.
Additional lawsuits relating to the Choropampa incident were filed against Yanacocha in the local courts of Cajamarca, Peru, in May 2002 by over 900 Peruvian citizens. A significant number of the plaintiffs in these lawsuits entered into settlement agreements with Yanacocha prior to filing such claims. In September 2006, the Peruvian Supreme Court issued contradictory opinions on the validity of these settlement agreements. Subsequent lower court decisions have upheld the validity of these settlement agreements, discharging a number of the lawsuits. In 2005, Yanacocha entered into settlement agreements with approximately 350 additional plaintiffs.
Neither Newmont nor Yanacocha can reasonably predict the final outcome of any of the above-described lawsuits.
Conga.  Yanacocha is involved in a dispute with the Provincial Municipality of Celendin regarding the authority of that governmental body to regulate the development of the Conga project. In the fourth quarter of 2004, the Municipality of Celendin enacted an ordinance declaring the area around Conga to be a mining-free reserve and naturally protected area. Yanacocha has challenged this ordinance on the grounds that, under Peruvian law, local governments lack authority to create such areas and deny the rights granted by Yanacocha’s mining concessions. Based on legal precedent established by Peru's Constitutional Tribunal, it is reasonable to believe that Yanacocha’s mining rights will be upheld.
 
25

NEWMONT MINING CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited) (Continued)
(dollars in millions, except per share, per ounce and per pound amounts)
 
Yanacocha has carefully evaluated the social issues and dynamics of the communities in and around the area of Conga. Yanacocha has engaged in extensive community and external affairs efforts at this early stage of the Conga project. It is Yanacocha’s current assessment that a significant percentage of the population in the communities immediately surrounding the Conga area support the project. Yanacocha will continue to engage actively with these communities during the process of permitting the project, and will expand its outreach efforts to communities in the surrounding region. It will continually monitor and evaluate conditions in the area and any resulting impact on Yanacocha’s ability to successfully permit and develop the Conga project.
Newmont Mining Corporation
On June 8, 2005, UFCW Local 880 – Retail Food Employers Joint Pension Fund filed a putative class action in the federal district court in Colorado purportedly on behalf of purchasers of Newmont Mining Corporation (“Newmont”) publicly traded securities between July 28, 2004 and April 26, 2005. The action named Newmont, Wayne W. Murdy, Pierre Lassonde and Bruce D. Hansen as defendants. Substantially similar purported class actions were filed in the same court on June 15, 2005 by John S. Chapman and on June 20, 2005 by Zoe Myerson. In November 2005, the court consolidated these cases and, in March 2006, appointed a lead plaintiff. In April 2006, the lead plaintiff filed a consolidated amended complaint naming David Francisco, Russell Ball, Thomas Enos and Robert Gallagher as additional defendants. It alleged, among other things, that Newmont and the individual defendants violated certain antifraud provisions of the federal securities laws by failing to disclose alleged operating deficiencies and sought unspecified monetary damages and other relief. On October 20, 2006, the lead plaintiff, on behalf of a settlement class consisting of all purchasers of Newmont securities from November 1, 2003, through and including March 23, 2006 (except defendants and certain related persons), entered into a Stipulation of Settlement with defendants. If approved by the Court, the Settlement (a) would release all claims asserted, or that could have been asserted, in the action; (b) would provide for a payment by Newmont of $15 to be distributed to class members pursuant to a plan of allocation developed by the lead plaintiff; and (c) would provide that all defendants deny any wrongdoing or liability with respect to the settled matters. The parties have moved for preliminary approval of the settlement, but the court has not ruled on the motion. Gideon Minerals, U.S.A., Inc. ("Gideon") has sought to intervene to bring a claim alleging that Gideon has an interest in the Batu Hijau operation in Indonesia; the court has denied that motion. Gideon subsequently filed a substantially similar motion and moved for default judgment; the court has also denied this motion and has required Gideon to show cause as to why it should not be sanctioned in relation to its filings.
On June 14, 2005, June 30, 2005 and July 1, 2005, purported derivative actions were filed, on behalf of Newmont, by Doris Staehr, Frank J. Donio and Jack G. Blaz, respectively, in the federal district court in Colorado against certain of Newmont’s current and former directors and officers. Each action alleged that certain defendants breached their fiduciary duties by engaging in insider trading and misappropriation of information, and that all defendants breached their fiduciary duties and engaged in conduct that constituted abuse of control, gross mismanagement, waste of corporate assets and unjust enrichment in connection with, among other things, failing to disclose alleged operating deficiencies and failing to prevent alleged violations of environmental laws in Indonesia. The plaintiffs seek, on behalf of Newmont, among other remedies, all damages sustained by the Company as a result of the allegedly improper conduct. In November 2005, the court consolidated these cases and in December 2005 the court appointed a lead plaintiff. On April 10, 2006, the lead plaintiff filed a consolidated amended complaint. This action has been administratively closed without prejudice to any party filing a motion to reopen prior to June 19, 2007. The defendants deny the claims made and, should the case be re-opened, intend to vigorously defend against them. The Company cannot reasonably predict the final outcome of these cases. In a related development, on January 13, 2006, a purported Newmont shareholder sent to the Board of Directors a letter demanding the Company take action against the defendants in the purported derivative actions with respect to the matters alleged in the derivative complaints. The Board has taken the demand under consideration. Counsel for plaintiffs in the derivative actions, counsel for the demanding shareholder and the Company have agreed to settle the action and related disputes on the basis of certain revisions to the Company's corporate governance arrangements, and an attorneys' fee to be paid by the Company. This settlement is subject to court approval.
Newmont Yandal Operations Pty Ltd (“NYOL”)—100% Newmont Owned
On September 3, 2003, J. Aron & Co. commenced proceedings in the Supreme Court of New South Wales (Australia) against NYOL, its subsidiaries and the administrator in relation to the completed voluntary administration of the NYOL group. J. Aron & Co., an NYOL creditor, initially sought injunctive relief that was denied by the court on September 8, 2003. On October 30, 2003, J. Aron & Co. filed a statement of claim alleging various deficiencies in the implementation of the voluntary administration process and seeking damages and other relief against NYOL and other parties. Newmont cannot reasonably predict the final outcome of this lawsuit.
 
26

NEWMONT MINING CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited) (Continued)
(dollars in millions, except per share, per ounce and per pound amounts)
 
Zarafshan-Newmont Joint Venture—50% Newmont Owned
In June 2006, an economic court in Uzbekistan ruled in favor of tax authorities and against the Zarafshan-Newmont Joint Venture (“ZNJV”), which is 50% owned by the Company, on two claims to collect approximately $48 in taxes other than income taxes. The tax authorities argued that Decree 151, which protected ZNJV from changes in tax laws and provided other financial and operational benefits, became ineffective and that the taxes and penalties claimed were owed for the period 2002-2005. Decree 151 had been granted by the Republic of Uzbekistan in 1992 as an incentive for the Company’s investment in ZNJV. The benefits it provided, including the stability of the tax and legal regime in effect at that time, were guaranteed to remain in effect for so long as ZNJV had ongoing operations.
On July 26, 2006, the Republic of Uzbekistan caused the seizure of gold, silver and unfinished product belonging to ZNJV. On August 14, 2006, the Company received notice that the economic court had accepted the petition of an agency of the Republic of Uzbekistan to institute a bankruptcy proceeding against ZNJV. Neither ZNJV nor the Company received advance notice that the petition was filed or that a hearing would be held. The court ordered “supervisory measures” restricting normal operations, including the export of gold or repayment of loans, without the approval of a court-appointed temporary administrator, who has been overseeing all operations of ZNJV.
At a September 19, 2006 meeting of the ZNJV creditor’s committee, which was principally composed of government representatives, the committee voted to liquidate ZNJV. On September 29, 2006, the economic court concluded that ZNJV was insolvent and ordered ZNJV to be liquidated by December 29, 2006. At this hearing, representatives of ZNJV and the Company were denied an opportunity to present the case against liquidation. The remaining assets of ZNJV are anticipated to be liquidated to pay the tax liabilities that have been imposed on ZNJV by the Republic of Uzbekistan, resulting in the effective transfer to the Republic of Uzbekistan of the Company’s interest in ZNJV. The liquidation sale has been postponed three times, and is now scheduled for May 2007. Despite the Company’s demands for compensation for the losses it has suffered, the Republic of Uzbekistan has refused to provide such compensation. On October 31, 2006, the Company filed demands for arbitration against the Republic of Uzbekistan in two separate international venues on the basis that the Republic of Uzbekistan repudiated its obligations to the Company under Decree 151, Uzbek and international law, and various agreements. The Uzbekistan parties to the joint venture agreement are also named as defendants in one of these proceedings. The Company and the defendants have appointed the arbitrators for both proceedings. At September 30, 2006, the Company wrote off the book value of its ownership interest in ZNJV. The ultimate outcome of this matter cannot be determined at this time.
Other Commitments and Contingencies
Tax contingencies are provided for under FIN 48. See Notes 2 and 6.
In a 1993 asset exchange, a wholly-owned subsidiary transferred a coal lease under which the subsidiary had collected advance royalty payments totaling $484. From 1994 to 2018, remaining advance payments under the lease to the transferee total $390. In the event of title failure as stated in the lease, this subsidiary has a primary obligation to refund previously collected payments and has a secondary obligation to refund any of the $390 collected by the transferee, if the transferee fails to meet its refund obligation. The subsidiary has title insurance on the leased coal deposits of $240 covering the secondary obligation. The Company and the subsidiary regard the circumstances entitling the lessee to a refund as remote.
The Company has minimum royalty obligations on one of its producing mines in Nevada for the life of the mine. Amounts paid as a minimum royalty (where production royalties are less than the minimum obligation) in any year are recoverable in future years when the minimum royalty obligation is exceeded. Although the minimum royalty requirement may not be met in a particular year, the Company expects that over the mine life, gold production will be sufficient to meet the minimum royalty requirements. Minimum royalty payments payable are $8 for 2007, $13 for 2008, $2 in 2009 and 2010, $18 in 2011 and $98 thereafter.
As part of its ongoing business and operations, the Company and its affiliates are required to provide surety bonds, bank letters of credit and bank guarantees as financial support for various purposes, including environmental reclamation, exploration permitting, workers compensation programs and other general corporate purposes. At March 31, 2007 and December 31, 2006, there were $475 and $445, respectively, of outstanding letters of credit, surety bonds and bank guarantees. The surety bonds, letters of credit and bank guarantees reflect fair value as a condition of their underlying purpose and are subject to fees competitively determined in the market place. The obligations associated with these instruments are generally related to performance requirements that the Company addresses through its ongoing operations. As the specific requirements are met, the beneficiary of the associated instrument cancels and/or returns the instrument to the issuing entity. Certain of these instruments are associated with operating sites with long-lived
 
27

NEWMONT MINING CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited) (Continued)
(dollars in millions, except per share, per ounce and per pound amounts)
 
assets and will remain outstanding until closure. Generally, bonding requirements associated with environmental regulation are becoming more restrictive. In addition, the surety markets for certain types of environmental bonding used by the Company have become increasingly constrained. The Company, however, believes it is in compliance with all applicable bonding obligations and will be able to satisfy future bonding requirements, through existing or alternative means, as they arise.
Under the Batu Hijau Contract of Work with the Indonesian government, beginning in 2005, and continuing through 2010, a portion of each foreign shareholders’ equity interest in the project must be offered for sale to the Indonesian government or to Indonesian nationals. The price at which such interest must be offered for sale to the Indonesian parties is the highest of the then-current replacement cost, the price at which shares of the project company would be accepted for listing on the Jakarta Stock Exchange, or the fair market value of such interest in the project company as a going concern. Pursuant to this provision of the Batu Hijau Contract of Work, it is possible that the ownership interest of the Newmont/Sumitomo partnership in Batu Hijau could be reduced to 49% by the end of 2010.
A company owned by an Indonesian national currently owns a 20% equity interest in Batu Hijau, and the Newmont/Sumitomo partnership was required to offer a 3% interest in 2006. An offer to sell a 3% interest was made to the government of Indonesia. While the central government declined to participate, local governments in the area in which the mine is located have expressed interest in acquiring shares, as have various Indonesian nationals. The Newmont/Sumitomo partnership continues discussions with various interested parties to meet its divestiture obligations. Under the terms of the Contract of Work, an additional 7% interest in Batu Hijau was offered for sale in March 2007 to the government of Indonesia.
Newmont is from time to time involved in various legal proceedings related to its business. Except in the above-described proceedings, management does not believe that adverse decisions in any pending or threatened proceeding or that amounts that may be required to be paid by reason thereof will have a material adverse effect on the Company’s financial condition or results of operations.
(22) SUPPLEMENTARY DATA
Ratio of Earnings to Fixed Charges
The ratio of earnings to fixed charges for the three months ended March 31, 2007 was 5.8. The ratio of earnings to fixed charges represents income from continuing operations before income tax expense, minority interest and equity income of affiliates, divided by interest expense. Interest expense includes amortization of capitalized interest and the portion of rent expense representative of interest. Interest expense does not include interest on income tax liabilities. The computation of the ratio of earnings to fixed charges can be found in Exhibit 12.1.
(23) SUBSEQUENT EVENT
Revolving Credit Facility
Effective April 24, 2007, the Company renegotiated the terms of its uncollateralized $1,250 revolving credit facility, increasing the facility amount to $2,000 and extending the maturity date to April 2012.
Buyat Bay
On April 24, 2007, an Indonesian court ruled that PTNMR and its President Director Richard Ness were innocent of all criminal charges of pollution and regulatory violations. The court further found that the Company was in compliance with all regulations and permits during its eight years of operations from 1996 to 2004.
 
28

ITEM 2.	MANAGEMENT’S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS AND FINANCIAL CONDITION (dollars in millions, except per share, per ounce and per pound amounts).	
The following discussion provides information that management believes is relevant to an assessment and understanding of the consolidated financial condition and results of operations of Newmont Mining Corporation and its subsidiaries (collectively, “Newmont” or the “Company”). References to “A$” refer to Australian currency, “CDN$” to Canadian currency, “IDR” to Indonesian currency and “$” to United States currency.
This item should be read in  conjunction with our interim unaudited Condensed Consolidated Financial Statements and the notes thereto included in this quarterly report.
Selected Financial and Operating Results

 	  	Three Months Ended March 31,	
 	  	2007	  	2006	
Revenues	  	$	1,256	  	$	1,132	
Income from continuing operations	  	$	68	  	$	207	
Net income	  	$	68	  	$	209	
			
Net income per common share, basic	  			  			
Income from continuing operations	  	$	0.15	  	$	0.47	
Net income	  	$	0.15	  	$	0.47	
			
Consolidated gold ounces sold (thousands) (1)	  	 	1,605	  	 	1,809	
Consolidated copper pounds sold (millions)	  	 	91	  	 	81	
			
Average price received (2)	  			  			
Gold (per ounce)	  	$	653	  	$	556	
Copper (per pound)	  	$	2.74	  	$	2.08	
			
Costs applicable to sales (3)	  			  			
Gold (per ounce)	  	$	421	  	$	275	
Copper (per pound)	  	$	1.40	  	$	0.81	

(1)	 	Includes 14 incremental start-up sales from Phoenix and Leeville in 2006 which are not included in Revenue , Costs applicable to sales and Depreciation, depletion and amortization per ounce calculations.	

(2)	 	Before treatment and refining charges but after hedge losses.	

(3)	 	Excludes depreciation, depletion and amortization.	
Consolidated Financial Results
Newmont’s income from continuing operations for the three month period ended March 31, 2007 was $68, or $0.15 per share. Results for the first three months of 2007 compared to 2006 were impacted by fewer gold ounces sold and higher operating costs, partially offset by higher realized gold and copper prices, higher copper pounds sold, the gain realized on the exchange of Agincourt Resources equity securities for Oxiana Ltd. equity securities and the commencement of operations at the Ahafo mine in August 2006.
 
29

Sales—gold , net for the first quarter of 2007 increased $48, or 5%, compared to the first quarter of 2006 as higher realized prices more than offset lower ounces sold. The following analysis summarizes the change in consolidated gold sales revenue:

 	  	Three Months Ended March 31,	 	
 	  	2007	 	 	2006	 	
Consolidated gold sales:	  				 				
Gross	  	$	1,049	 	 	$	998	 	
Less: Treatment and refining charges	  	 	(6	)	 	 	(3	)	
	  	 	 	 	 	 	 	 	
Net	  	$	1,043	 	 	$	995	 	
	  	 	 	 	 	 	 	 	
Consolidated gold ounces sold (thousands):	  				 				
Gross	  	 	1,605	 	 	 	1,809	 	
Less: Incremental start-up sales	  	 	—  	 	 	 	(14	)	
	  	 	 	 	 	 	 	 	
Net	  	 	1,605	 	 	 	1,795	 	
	  	 	 	 	 	 	 	 	
Average realized price (per ounce):	  				 				
Before treatment and refining charges	  	$	653	 	 	$	556	 	
After treatment and refining charges	  	$	649	 	 	$	554	 	
The change in consolidated gold sales is due to:

 	  	Three Months
Ended
March 31,	 	
 	  	2007 vs. 2006	 	
Reduction in consolidated ounces sold	  	$	(106	)	
Increase in average realized gold price	  	 	157	 	
Increase in treatment and refining charges	  	 	(3	)	
	  	 	 	 	
	  	$	48	 	
	  	 	 	 	
Sales—copper, net for the first quarter of 2007 increased $76, or 55%, compared to the first quarter of 2006 primarily due to higher realized prices and increased sales volumes. Hedge losses recognized during the first quarter of 2007 were lower than the first quarter of 2006 as the final deliveries were made under copper collar contracts. At March 31, 2007, 13 million pounds delivered under the contracts remain subject to final settlement. In the first quarter of 2006, a loss of $23 was included in Other income, net for the ineffective portion of copper hedges. For a complete discussion regarding variations in gold and copper volumes, see Results of Consolidated Operations below.
The following analysis summarizes the change in consolidated copper sales revenue:

 	  	Three Months Ended March 31,	 	
 	  	2007	 	 	2006	 	
Consolidated copper sales:	  				 				
Gross before hedging	  	$	245	 	 	$	176	 	
Hedging loss	  	 	(1	)	 	 	(95	)	
Provisional pricing mark-to-market gain	  	 	6	 	 	 	87	 	
	  	 	 	 	 	 	 	 	
Gross after hedging	  	 	250	 	 	 	168	 	
Less: Treatment and refining charges	  	 	(37	)	 	 	(31	)	
	  	 	 	 	 	 	 	 	
Net	  	$	213	 	 	$	137	 	
	  	 	 	 	 	 	 	 	
Consolidated copper pounds sold (millions)	  	 	91	 	 	 	81	 	
			
Average realized price (per pound):	  				 				
Gross before hedging	  	$	2.68	 	 	$	2.18	 	
Hedging loss	  	 	(0.01	)	 	 	(1.18	)	
Provisional pricing mark-to-market gain	  	 	0.07	 	 	 	1.08	 	
	  	 	 	 	 	 	 	 	
Gross after hedging	  	 	2.74	 	 	 	2.08	 	
Less: Treatment and refining charges	  	 	(0.41	)	 	 	(0.38	)	
	  	 	 	 	 	 	 	 	
Net	  	$	2.33	 	 	$	1.70	 	

30

The change in consolidated copper sales is due to:

 	  	Three Months
Ended
March 31,	 	
 	  	2007 vs. 2006	 	
Increase in consolidated pounds sold	  	$	22	 	
Increase in average realized copper price	  	 	60	 	
Increase in treatment and refining charges	  	 	(6	)	
	  	 	 	 	
	  	$	76	 	
	  	 	 	 	
The following is a summary of net gold and copper sales:

 	  	Three Months Ended March 31,	 	
 	  	2007	  	2006	 	
Gold	  			  				
Nevada, USA	  	$	361	  	$	288	 	
Yanacocha, Peru	  	 	297	  	 	427	 	
Australia/New Zealand:	  			  				
Tanami, Australia	  	 	74	  	 	60	 	
Kalgoorlie, Australia	  	 	62	  	 	52	 	
Jundee, Australia	  	 	40	  	 	36	 	
Pajingo, Australia	  	 	31	  	 	18	 	
Martha, New Zealand	  	 	9	  	 	21	 	
	  	 	 	  	 	 	 	
	  	 	216	  	 	187	 	
	  	 	 	  	 	 	 	
Batu Hijau, Indonesia	  	 	56	  	 	39	 	
Ahafo, Ghana	  	 	81	  	 	—  	 	
Other Operations:	  			  				
Golden Giant, Canada	  	 	2	  	 	19	 	
Kori Kollo, Bolivia	  	 	16	  	 	24	 	
La Herradura, Mexico	  	 	14	  	 	12	 	
	  	 	 	  	 	 	 	
	  	 	32	  	 	55	 	
	  	 	 	  	 	 	 	
Corporate	  	 	—  	  	 	(1	)	
	  	 	 	  	 	 	 	
	  	$	1,043	  	$	995	 	
	  	 	 	  	 	 	 	
Copper	  			  				
Batu Hijau, Indonesia	  	$	213	  	$	137	 	

31

Costs applicable to sales increased $182 for gold and $63 for copper for the first quarter of 2007 compared to the first quarter of 2006, as detailed in the table below. The increase in the first quarter of 2007 is primarily due to new operations at Ahafo and Phoenix and Leeville in Nevada, increased input commodity prices, higher labor costs, higher waste removal costs and unfavorable exchange rate movements in the Australian dollar. For a complete discussion regarding variations in operations, see Results of Consolidated Operations below.
The following is a summary of Costs applicable to sales , excluding depreciation, depletion and amortization:

 	  	Three Months Ended March 31,	
 	  	2007	  	2006	
Gold	  			  			
Nevada, USA	  	$	276	  	$	206	
Yanacocha, Peru	  	 	141	  	 	124	
Australia/New Zealand:	  			  			
Tanami, Australia	  	 	50	  	 	38	
Kalgoorlie, Australia	  	 	58	  	 	44	
Jundee, Australia	  	 	36	  	 	26	
Pajingo, Australia	  	 	19	  	 	14	
Martha, New Zealand	  	 	9	  	 	6	
	  	 	 	  	 	 	
	  	 	172	  	 	128	
	  	 	 	  	 	 	
Batu Hijau, Indonesia	  	 	28	  	 	15	
Ahafo, Ghana	  	 	43	  	 	—  	
Other Operations:	  			  			
Golden Giant, Canada	  	 	1	  	 	8	
Kori Kollo, Bolivia	  	 	8	  	 	7	
La Herradura, Mexico	  	 	7	  	 	6	
	  	 	 	  	 	 	
	  	 	16	  	 	21	
	  	 	 	  	 	 	
	  	$	676	  	$	494	
	  	 	 	  	 	 	
Copper	  			  			
Batu Hijau, Indonesia	  	$	128	  	$	65	

32

Depreciation, depletion and amortization (“DD&A”) increased for the first quarter of 2007 compared to the first quarter of 2006 as detailed in the table below, and primarily relates to increases from new operations at Ahafo and Phoenix and Leeville in Nevada, sales of inventory in Australia/NewZealand and the expansion of the mining fleet at Batu Hijau in the later half of 2006. Newmont expects 2007 DD&A to be approximately $800 to $865.
The following is a summary of Depreciation, depletion and amortization :

 	  	Three Months Ended March 31,	
 	  	2007	  	2006	
Nevada, USA	  	$	55	  	$	36	
Yanacocha, Peru	  	 	42	  	 	43	
Australia/New Zealand:	  			  			
Tanami, Australia	  	 	9	  	 	7	
Kalgoorlie, Australia	  	 	8	  	 	6	
Jundee, Australia	  	 	6	  	 	5	
Pajingo, Australia	  	 	9	  	 	5	
Martha, New Zealand	  	 	3	  	 	3	
	  	 	 	  	 	 	
Gold	  	 	35	  	 	26	
Other	  	 	1	  	 	1	
	  	 	 	  	 	 	
	  	 	36	  	 	27	
	  	 	 	  	 	 	
Batu Hijau, Indonesia:	  			  			
Gold	  	 	6	  	 	4	
Copper	  	 	28	  	 	16	
	  	 	 	  	 	 	
	  	 	34	  	 	20	
	  	 	 	  	 	 	
Ahafo, Ghana	  	 	10	  	 	—	
	  	 	 	  	 	 	
Other Operations:	  			  			
Golden Giant, Canada	  	 	—	  	 	1	
Kori Kollo, Bolivia	  	 	3	  	 	2	
La Herradura, Mexico	  	 	2	  	 	2	
	  	 	 	  	 	 	
	  	 	5	  	 	5	
Other:	  			  			
Exploration	  	 	—	  	 	1	
Merchant Banking	  	 	4	  	 	5	
Corporate and Other	  	 	6	  	 	3	
	  	 	 	  	 	 	
	  	 	10	  	 	9	
	  	 	 	  	 	 	
	  	$	192	  	$	140	
	  	 	 	  	 	 	
Exploration increased $7, or 21% for the first quarter of 2007 compared to the first quarter of 2006. The increase was primarily a result of spending at the Fort a la Corne diamond joint venture in Canada and increased spending in Nevada. Newmont expects 2007 Exploration expense to be approximately $170 to $175. 
Advanced projects, research and development and General and administrative expenses remained constant for the first quarter of 2007 compared to the first quarter of 2006. Newmont expects 2007 Advanced projects, research and development expenses to be approximately $85 to $100 and General and administrative expenses to be approximately $155 to $165.
Other expense, net increased by $8 for the first quarter of 2007 compared to the first quarter of 2006. The increase is primarily due to a $5 loss on an unfavorable natural gas supply agreement for the Company’s power plant in Western Australia.
 
33

Other income, net for the first quarter of 2007 and 2006 is summarized as follows:

 	  	Three Months Ended March 31,	 	
 	  	2007	 	 	2006	 	
Gain on investments, net	  	$	27	 	 	$	1	 	
Royalty and dividend income	  	 	31	 	 	 	29	 	
Interest income	  	 	13	 	 	 	19	 	
Income from development projects, net	  	 	—	 	 	 	4	 	
Loss on ineffective portion of derivative instruments, net	  	 	(2	)	 	 	(24	)	
Foreign currency exchange (losses) gains, net	  	 	(5	)	 	 	3	 	
Other	  	 	3	 	 	 	3	 	
	  	 	 	 	 	 	 	 	
	  	$	67	 	 	$	35	 	
	  	 	 	 	 	 	 	 	
Gain on investments, net includes a $27 gain resulting from Oxiana Ltd. shares obtained following the acquisition of Agincourt Resources by Oxiana Ltd., a $6 gain on the sale of other investments offset by a $6 write-down of the Company’s investment in Queenstake Resources Ltd.
Interest income decreased in 2007 due to a reduction in funds available for investment, partially offset by a higher return on funds invested.
Income from development projects in 2006 included revenue net of incremental operating costs incurred prior to commencement of commercial production at the Leeville and Phoenix operations in Nevada during the fourth quarter of 2006.
Loss on ineffective portion of derivative instruments, net included $2 for the ineffective portion of interest rate swap derivative instruments designated as cash flow hedges in 2007. In 2006, the losses included $23 for the ineffective portion of copper collar contracts and $1 for interest rate swap derivative instruments each designated as cash flow hedges.
Interest expense, net increased in 2007 due to $200 debt issued at Yanacocha during 2006 and $3 lower capitalized interest. Capitalized interest decreased as a result of the completion of the Ahafo, Phoenix and Leeville development projects in 2006. Newmont expects 2007 Interest expense, net to be approximately $95 to $105.
Income tax expense during the first quarter of 2007 was $62 compared to $37 during the first quarter of 2006. The effective tax rate for the first quarter of 2007 was 33% compared to 11% for the first quarter of 2006. The 22% increase over the 2006 first quarter rate primarily relates to the following non-recurring discrete items occurring in 2006; (i) the Australian tax functional currency election, (ii) Ghanaian tax rate change, and (iii) the valuation allowance release on foreign tax credits. The effective tax rate in the first quarter of 2007 is different from the United States statutory rate of 35% primarily due to (i) U.S. percentage depletion, (ii) the valuation allowance release relative to the Company’s deferred tax asset for capital losses in Australia, and (iii) the effect of different income tax rates in countries where earnings are indefinitely reinvested. The effective tax rate in 2006 is different from the United States statutory rate of 35% primarily due to (i) U.S. percentage depletion, (ii) additional tax benefits associated with the change in Australian tax law regarding the ability of the company to file consolidated income tax returns, and (iii) the valuation allowance release relative to the Company’s deferred tax assets for post-retirement benefit obligations, the latter two being discrete non-recurring items. For a complete discussion of the factors that influence the Company’s effective tax rate, see Management’s Discussion and Analysis of Results of Operations and Financial Condition in Newmont’s Annual Report on Form 10-K for the year ended December 31, 2006, filed February 26, 2007. Newmont expects the 2007 full year tax rate to be approximately 29% to 34% assuming an average gold price of $650 per ounce.
In December 2006, the Company entered into an in-principle heads of agreement with the Australian Taxation Office (“ATO”). The heads of agreement specifies the terms of a proposed settlement of the outstanding audit issues relating to Normandy for the tax years 1994-1999. These issues relate to years before the Company acquired Normandy. At the date of the business combination, Normandy had recorded no income tax liability with respect to the tax positions taken in reporting certain transactions, therefore the Company’s initial best estimate of the income tax contingency relating to these issues was recorded as a tax liability at the date of acquisition, February 15, 2002, by increasing the purchase price of Normandy. At December 31, 2006, the long-term income tax liability balance relating to this proposed settlement was reclassified to current income taxes payable and remains outstanding at March 31, 2007.
The Income from discontinued operations in 2006 resulted from the Holloway and Zarafshan gold operations being discontinued from sale and expropriation, respectively. The Company reclassified the income statement results from the historical presentation to discontinued operations in the Condensed Consolidated Statements of Income for all periods presented (see Note 7 to the Condensed Consolidated Financial Statements).
 
34

 
Results of Consolidated Operations

 	  	Gold Ounces or
Copper Pounds Sold (1)	  	Costs Applicable to Sales (2)	  	Depreciation, Depletion
and Amortization	
 	  	2007	  	2006	  	2007	  	2006	  	2007	  	2006	
 	  	(ounces in thousands)	  	($ per ounce)	  	($ per ounce)	
Three Months Ended March 31,	  		  		  			  			  			  			
Gold	  		  		  			  			  			  			
Nevada	  	560	  	535	  	$	493	  	$	395	  	$	98	  	$	68	
Yanacocha (3) (51.35% owned)	  	455	  	770	  	 	310	  	 	161	  	 	93	  	 	56	
Australia/New Zealand	  	332	  	333	  	 	519	  	 	384	  	 	107	  	 	79	
Batu Hijau (3) (52.875% economic interest)	  	84	  	73	  	 	330	  	 	208	  	 	74	  	 	51	
Ahafo	  	125	  	—	  	 	341	  	 	—	  	 	78	  	 	—	
Other (3)	  	49	  	98	  	 	331	  	 	209	  	 	101	  	 	48	
	  	 	  	 	  	 	 	  	 	 	  	 	 	  	 	 	
Total/Weighted-Average	  	1,605	  	1,809	  	$	421	  	$	275	  	$	95	  	$	63	

 	  	(pounds in millions)	  	($ per pound)	  	($ per pound)	
Copper	  		  			  				
Batu Hijau (3) (52.875% economic interest)	  	91	  	81	  	$	1.40	  	$	0.81	  	$	0.31	  	$	0.19	

(1)	 	Includes 14 ounces in 2006 from Phoenix and Leeville start-up activities which are not included in Revenue , Costs applicable to sales and Depreciation, depletion and amortization per ounce calculations.	

(2)	 	Excludes depreciation, depletion and amortization.	

(3)	 	Consolidated gold ounces or copper pounds sold includes minority interests’ share.	
Consolidated gold ounces sold decreased 11% in the first quarter of 2007 from 2006, primarily due to lower production at Yanacocha, partially offset by the commencement of operations at Ahafo in the third quarter of 2006 and Phoenix and Leeville in Nevada during the fourth quarter of 2006.
Consolidated copper pounds sold increased 12% in the first quarter of 2007 from 2006, primarily due to increased mill throughput, partially offset by lower recovery at Batu Hijau.
Costs applicable to sales per consolidated gold ounce sold increased 53% in the first quarter of 2007 from 2006, primarily due to the decrease in production, higher waste removal costs at Nevada, Yanacocha, Batu Hijau and Kalgoorlie (Australia/New Zealand) and high operating costs at Phoenix in Nevada. Also, the strengthening of the Australian dollar increased Consolidated Costs applicable to sales by $6 per ounce in the first quarter of 2007 compared to 2006. Costs applicable to sales per consolidated copper pound increased 73% in the first quarter of 2007 from 2006, primarily due to the increase in waste removal costs at Batu Hijau.
The Company expects consolidated gold sales of approximately 6.1 to 6.6 million ounces in 2007, primarily as a result of lower production from Yanacocha and Australia, as well as the completion of mining at Lone Tree in Nevada and lower remnant production from Golden Giant (Other operations). Costs applicable to sales per ounce for the full year in 2007 are expected to be approximately 25% higher than 2006, primarily from lower production at Yanacocha and Australia, as well as higher labor, consumables and energy prices in all operating regions. Additionally, continued operating difficulties at Phoenix, unfavorable exchange rate movements in Australia and potential power interruptions in Ghana could negatively impact the Company’s Costs applicable to sales in 2007.
The Company expects consolidated copper sales of approximately 400 to 435 million pounds of copper in 2007 at Costs applicable to sales of approximately $1.10 to $1.20 per pound.
Nevada Operations

 	  	Gold Ounces Sold (1)	  	Costs Applicable to Sales (2)	  	Depreciation, Depletion
and Amortization	
 	  	2007	  	2006	  	2007	  	2006	  	2007	  	2006	
 	  	(in thousands)	  	($ per ounce)	  	($ per ounce)	
Three months ended March 31,	  	560	  	535	  	$	493	  	$	395	  	$	98	  	$	68	

(1)	 	Includes 14 incremental start-up ounces in 2006.	

(2)	 	Excludes depreciation, depletion and amortization.	
Gold ounces sold in Nevada increased 5% in the first quarter of 2007 from 2006. Gold sales increased with the commencement of commercial production at Phoenix and Leeville in October of 2006. Open pit and underground ore mined increased to 11.1 million tons in the first quarter of 2007, up from 9.1 million tons in the first quarter of 2006. Mining at Phoenix and Leeville contributed to the increase in ore mined. Ore milled increased to 6.2 million tons from 3.6 million tons in the first quarter of 2006, although milled ore
 
35

grade decreased 28% with the processing of lower grade ore from Phoenix. Ore placed on leach pads decreased by 49% due to the completion of mining at Lone Tree in 2006 and fewer leach ore tons were processed at Carlin in the first quarter of 2007, as the ore mined contained a higher proportion of mill ore. Stockpile processing at the Lone Tree mill continued in the first quarter of 2007 and is expected to continue throughout the remainder of 2007. Incorporating the first quarter results summarized above, the Company continues to expect gold sales in Nevada of approximately 2.35 to 2.55 million ounces for 2007.
Phoenix optimization remains the primary risk influencing Nevada’s gold sales and Costs applicable to sales outlook for the year. During the quarter, Phoenix experienced lower than expected ore grade, tailings line restrictions, harder than anticipated ore and lower mill availability. The Company continues to evaluate solutions to address metallurgical and startup challenges related to oxide and transitional ores at Phoenix. Higher grades, throughput and recovery opportunities exist throughout the rest of the Nevada complex, particularly as Leeville continues to ramp up and as Twin Creeks begins mining ore from recently accessed laybacks.
Nevada’s C osts applicable to sales per ounce increased 25% from $395 in the first quarter of 2006 to $493 per ounce in the first quarter of 2007. Higher cost production from Phoenix contributed to the increase in operating costs. Waste removal costs also increased due to accelerated mining at Pete, Gold Quarry and Twin Creeks. Costs for underground contracted services also increased at Leeville and Carlin East. Labor and input commodity cost escalation continued to impact operating costs. Depreciation, depletion and amortization per ounce increased 44% from the first quarter of 2006 as a result of increased investment in new equipment and facilities in 2006.
The Company continues to expect Costs applicable to sales of approximately $375 to $400 per ounce for 2007, provided that the current oxide and transitional ore issues at Phoenix are resolved. Unit costs during the first quarter of 2007 were above the expected range as a result of the higher cost production and lower by-product credits at Phoenix, as well as continued deployment of higher cost contracted underground and maintenance services. Contractor expenses are expected to decrease as Newmont employees are deployed for the remainder of the year. Ongoing challenges at Phoenix could result in Costs applicable to sales per ounce above the expected range for the year. During the second quarter of 2007, Costs applicable to sales per ounce will be temporarily impacted by the regularly planned annual maintenance at Mill 6. Potentially higher grades, improving throughput and increased recoveries at Leeville and Twin Creeks provide cost enhancement opportunities for the remainder of 2007.
Construction of the 200-megawatt coal-fired power plant was approximately 55% complete at March 31, 2007 and remains on schedule for completion in 2008. Anticipated capital costs for the power plant are expected to be between $620 and $640.
Yanacocha Operations

 	  	Gold Ounces Sold (1)	  	Costs Applicable to Sales (2)	  	Depreciation, Depletion
and Amortization	
 	  	2007	  	2006	  	2007	  	2006	  	2007	  	2006	
 	  	(in thousands)	  	($ per ounce)	  	($ per ounce)	
Three months ended March 31,	  	455	  	770	  	$	310	  	$	161	  	$	93	  	$	56	

(1)	 	Consolidated gold ounces sold includes minority interests’ share (51.35% Newmont owned).	

(2)	 	Excludes depreciation, depletion and amortization.	
As expected, consolidated gold sales at Yanacocha decreased 41% in the first quarter of 2007 from the first quarter of 2006. Ore mined and placed on the leach pads decreased to 16.5 million tons in the first quarter of 2007 from 31.1 million tons in the first quarter of 2006. During the same periods, the amount of waste material mined increased to 29.7 million tons from 19.3 million tons as expected in the mine plan. Leached ore grade also decreased by 63% from 0.035 to 0.013 ounces per ton in the first quarter of 2007.
The Company continues to expect consolidated gold sales of approximately 1.5 to 1.6 million ounces for 2007. Higher than anticipated gold sales during the first quarter of 2007 resulted from sales of inventory on hand at year-end. Yanacocha’s gold sales for the remainder of the year could be adversely impacted by potentially higher waste removal rates and lower ore grades, while opportunities exist for inventory reductions and increased recoveries during the remainder of the year at La Quinua and Carachugo deposits.
Costs applicable to sales per ounce increased in the first quarter of 2007 to $310 per ounce from $161 per ounce in the first quarter of 2006, primarily due to higher waste removal, lower production and rising labor costs. Consumption of fuel, cyanide, chemicals and reagents decreased from the first quarter of 2006 as the volume of tons mined and placed on leach pads declined. The Company continues to expect Costs applicable to sales of approximately $340 to $360 per ounce for the full year. Increased recoveries could result in Costs applicable to sales per ounce towards the lower end of the expected range for the full year.
Construction of the gold mill at Yanacocha was approximately 56% complete at March 31, 2007. Progress on the gold mill continues as expected, with costs expected to be between $250 and $270 with completion anticipated by mid-2008.
 
36

The collective bargaining agreement at Yanacocha expired in February 2007. Most employees covered by this  contract continue to work while a new agreement is currently being negotiated.
Australia/New Zealand Operations

 	  	Gold Ounces Sold	  	Costs Applicable to Sales (1)	  	Depreciation, Depletion
and Amortization	
 	  	2007	  	2006	  	2007	  	2006	  	2007	  	2006	
 	  	(in thousands)	  	($ per ounce)	  	($ per ounce)	
Three Months Ended March 31,	  		  		  			  			  			  			
Tanami	  	113	  	108	  	$	440	  	$	346	  	$	82	  	$	63	
Kalgoorlie (50% owned)	  	95	  	94	  	 	614	  	 	465	  	 	88	  	 	70	
Jundee	  	62	  	62	  	 	584	  	 	425	  	 	96	  	 	79	
Pajingo	  	48	  	32	  	 	390	  	 	439	  	 	178	  	 	149	
Waihi (Martha)	  	14	  	37	  	 	663	  	 	176	  	 	242	  	 	86	
	  	 	  	 	  	 	 	  	 	 	  	 	 	  	 	 	
Total/Weighted-Average	  	332	  	333	  	$	519	  	$	384	  	$	107	  	$	79	

(1)	 	Excludes depreciation, depletion and amortization.	
Australia/New Zealand gold sales were essentially unchanged in the first quarter 2007 compared to 2006, primarily due to inventory sales and increased production at Pajingo offset by lower production at Martha, Tanami, Kalgoorlie and Jundee. Costs applicable to sales per ounce for the first quarter increased in 2007 from 2006 by 35%, primarily due to the decrease in production, increased royalties due to the higher gold price and increased input costs, particularly diesel, electricity and labor. Also, the strengthening of the Australian dollar increased Costs applicable to sales by $26 per ounce in the first quarter of 2007 compared to 2006.
Tanami, Australia . Gold ounces sold increased 5% in the first quarter of 2007 from 2006, primarily due to a reduction in inventories and 4% higher mill ore grade partially offset by an 11% decrease in mill throughput due to unplanned mill maintenance, as well as limited underground ore availability resulting from haul road flooding during the first quarter. Costs applicable to sales per ounce increased 27%, primarily due to higher ore hauling charges associated with longer hauling distances, as well increased royalties due to the higher gold price.
Kalgoorlie, Australia . Gold ounces sold remained constant in the first quarter of 2007 compared to 2006, as increased inventory sales offset lower production due to a 12% decrease in mill ore grade caused by lower than anticipated mining rates resulting from poor weather conditions and limited shovel availability. Costs applicable to sales per ounce increased 32%, primarily due to lower gold production and increased mining and milling costs.
Jundee, Australia . Gold ounces sold remained constant in the first quarter of 2007 compared to 2006, as increased inventory sales and a 7% increase in mill ore grade were offset by a 20% decrease in mill throughput and 4% lower mill recovery. Mill throughput decreased due to ball mill maintenance during the first quarter. Costs applicable to sales per ounce increased 37%, primarily attributable to increased maintenance and electricity costs, as well as higher drilling and technical service charges.
Pajingo, Australia . Gold ounces sold increased 50% in the first quarter of 2007 from 2006, due to a 19% increase in tons milled and a 16% increase in mill ore grade as mining and ground conditions continue to improve. Costs applicable to sales per ounce decreased 11%, primarily due to increased production.
Waihi (Martha), New Zealand . Gold ounces sold decreased 62% in the first quarter of 2007 from 2006, resulting from a planned mill suspension related to underground mine development at Favona and waste removal at the Martha open pit. Costs applicable to sales per ounce were higher due to the decrease in gold production and the planned transition to underground operations.
Incorporating first quarter results, the Company continues to expect gold sales in Australia/New Zealand of approximately 1.275 and 1.325 million ounces for 2007 at Costs applicable to sales of approximately $445 to $470 per ounce, excluding adverse changes in the Australian dollar exchange rate beyond a full year average rate of A$1.00:$0.77. Unfavorable changes in the Australian dollar exchange rate could result in operating costs for the region outside of the expected range for the full year, as a significant portion of costs are Australian dollar denominated. Costs applicable to sales in Australia/New Zealand are expected to change by approximately $5 to $6 per ounce for every $0.01 move in the Australian dollar exchange rate.
Development of the Boddington project remains on schedule and is approximately 33% complete, with start-up expected in late 2008 or early 2009. Newmont’s share of the expected capital cost remains between $900 and $1,100.
 
37

Batu Hijau Operation

 	  	Gold Ounces Sold (1)	  	Costs Applicable to Sales (2)	  	Depreciation, Depletion
and Amortization	
 	  	2007	  	2006	  	2007	  	2006	  	2007	  	2006	
 	  	(ounces in thousands)	  	($ per ounce)	  	($ per ounce)	
Gold	  		  		  			  			  			  			
Three months ended March 31,	  	84	  	73	  	$	330	  	$	208	  	$	74	  	$	51	
 	  	Copper Pounds Sold (1)	  	Costs Applicable to Sales (2)	  	Depreciation, Depletion
and Amortization	
 	  	(pounds in millions)	  	($ per pound)	  	($ per pound)	
Copper	  		
Three months ended March 31,	  	91	  	81	  	$	1.40	  	$	0.81	  	$	0.31	  	$	0.19	

(1)	 	Consolidated gold ounces or copper pounds sold includes minority interests’ share (Newmont has a 52.875% economic interest).	

(2)	 	Excludes depreciation, depletion and amortization.	
Consolidated copper and gold sales increased 12% and 15% in the first quarter of 2007 from 2006, respectively, primarily as a result of 11% higher mill throughput with an increase in stockpile material feed. Total tons mined increased by 6% compared to the first quarter of 2006 due to the addition of 26 haul trucks and a loading shovel. Waste material mined increased to 62.2 million tons from 29.0 million tons in the first quarter of 2006 due to a change in the short term mine plan that increased the amount of waste tons mined and decreased ore tons mined during the first quarter.
Incorporating first quarter results, the Company continues to expect consolidated gold and copper sales of approximately 435,000 to 475,000 ounces of gold and approximately 395 to 435 million pounds of copper in 2007. Higher grade and throughput opportunities exist for the remainder of 2007.
Costs applicable to sales increased 73% per pound of copper and 59% per ounce of gold in the first quarter of 2007 from 2006, as waste removal costs increased due to a change in the short term mine plan. Additionally, operating costs were impacted by higher mill throughput and stockpile re-handling costs. Increasing labor and input commodity prices continue to impact operating costs, as well as increased selling expenses and royalties due to higher average prices for both gold and copper.
The average realized copper price increased 32% to $2.74 per pound from $2.08 per pound in the prior year quarter, as the last remaining copper hedge contracts were delivered in February 2007.
The Company continues to expect Costs applicable to sales of approximately $225 to $240 per ounce of gold and $1.10 to $1.20 per pound of copper for the full year. Fewer waste tons are expected to be mined during the remainder of 2007, resulting in lower mining costs expensed for the full year compared to the first quarter of 2007. Additionally, a higher proportion of total operating costs could be allocated to Costs applicable to sales of gold if gold prices and gold sales volumes continue to increase at a higher rate than copper prices and sales volumes.
Under the Contract of Work, beginning in 2005 and continuing through 2010, a portion of the project must be offered for sale to the Indonesian government or to Indonesian nationals, equal to the difference between the following percentages and the percentage of shares already owned by the Indonesian government or Indonesian nationals (if such number is positive): 15%, by the end of 2005; 23%, by the end of 2006; 30%, by the end of 2007; 37%, by the end of 2008; 44%, by the end of 2009; and 51%, by the end of 2010. The price at which such interest must be offered for sale to the Indonesian parties is the highest of the then-current replacement cost, the price at which shares of the project company would be accepted for listing on the Jakarta Stock Exchange, or the fair market value of such interest in the project company as a going concern. Pursuant to this provision, it is possible that the ownership interest of the Newmont/Sumitomo partnership in Batu Hijau could be reduced to 49% by the end of 2010.
A company owned by an Indonesian national currently owns a 20% interest in Batu Hijau, and therefore the Newmont/Sumitomo partnership was required to offer a 3% interest for sale in 2006. An offer to sell a 3% interest was made to the government of Indonesia. While the central government declined to participate, local governments in the area in which the mine is located have expressed interest in acquiring shares, as have various Indonesian nationals. The Newmont/Sumitomo partnership continues discussions with various interested parties to meet its divestiture obligations. Under the terms of the Contract of Work, an additional 7% interest in Batu Hijau was offered for sale in March 2007 to the government of Indonesia.
 
38

Ahafo Operation

 	  	Gold Ounces Sold	  	Costs Applicable to Sales (1)	  	Depreciation, Depletion
and Amortization	
 	  	2007	  	2006	  	2007	  	2006	  	2007	  	2006	
 	  	(in thousands)	  	($ per ounce)	  	($ per ounce)	
Three months ended March 31,	  	125	  	—	  	$	341	  	$	—	  	$	78	  	$	—	

(1)	 	Excludes depreciation, depletion and amortization.	
Ahafo sold 125,000 ounces in the first quarter of 2007. Mill throughput and gold production were in line with expectations. Ore mill grade of 0.063 ounces per ton was higher than expected during the first quarter of 2007. Costs applicable to sales were $341 per ounce for the first quarter of 2007, primarily due to lower than anticipated power generation charges. Power costs are expected to be higher for the remainder of 2007. Additionally, higher than expected production helped to reduce Costs applicable to sales per ounce.
Incorporating first quarter results, the Company continues to expect gold sales of approximately 410,000 to 450,000 ounces in 2007. Higher milled ore grades during the first quarter may provide positive grade reconciliation opportunities for the remainder of 2007. The Company continues to expect Costs applicable to sales of approximately $460 to $500 per ounce for the year. Lower than anticipated power charges and higher than expected mill grades could reduce costs applicable to sales to the lower end of the expected range if sustained throughout the remainder of the year. Ahafo continues to address power availability issues in Ghana. Generators are currently being commissioned at Ahafo, allowing the plant to operate while meeting the government's power shedding requirements.
An additional 80 mega-watt power plant is under construction in Ghana with completion anticipated during the third quarter. Newmont will have a 25% share in the power supplied from this plant. The majority of the equipment for this plant cleared customs in March, with the remaining critical equipment expected to be delivered by the end of May. As a result of the mining industry's initiative to install a power plant, the Ghanaian government has agreed to distribute power proportionately between participating mines and the public. The Company currently anticipates generating roughly one-third of Ahafo's power needs from this plant, with the remainder coming from the Ghanaian power grid.
Other Operations

 	  	Gold Ounces Sold	  	Costs Applicable to Sales (1)	  	Depreciation, Depletion
and Amortization	
 	  	2007	  	2006	  	2007	  	2006	  	2007	  	2006	
 	  	(in thousands)	  	($ per ounce)	  	($ per ounce)	
Three Months Ended March 31,	  		  		  			  			  			  			
Kori Kollo (2) (88% owned)	  	24	  	44	  	$	347	  	$	169	  	$	106	  	$	49	
La Herradura (44% owned)	  	22	  	20	  	 	324	  	 	274	  	 	110	  	 	98	
Golden Giant	  	3	  	34	  	 	260	  	 	223	  	 	—	  	 	17	
	  	 	  	 	  	 	 	  	 	 	  	 	 	  	 	 	
Total/Weighted-Average	  	49	  	98	  	$	331	  	$	209	  	$	101	  	$	48	

(1)	 	Excludes depreciation, depletion and amortization.	

(2)	 	Consolidated gold ounces sold includes minority interests’ share.	
Kori Kollo, Bolivia . Consolidated gold ounces sold decreased 45% in the first quarter of 2007 from 2006, resulting from 42% fewer tons placed on the leach pads. Waste tons mined increased 51% due to a change in the pit design. Costs applicable to sales per ounce more than doubled in the first quarter of 2007 from 2006 primarily as a result of lower production and higher waste removal costs.
La Herradura, Mexico . Gold ounces sold increased 10% in the first quarter of 2007 from 2006, primarily as a result of 41% more tons placed on the leach pad offset by timing of flows from the pad. Costs applicable to sales per ounce increased 18%, primarily due to increases in tons mined and leaching costs.
Golden Giant, Canada . Mining operations at Golden Giant were completed in December 2005. Remnant production from in-circuit inventory recovery and mill clean-up activities was 3,000 ounces in the first quarter of 2007, down from 34,000 ounces in the first quarter of 2006.
Consolidated gold sales for Other Operations in 2007 are expected to be approximately 160,000 to 200,000 ounces at Costs applicable to sales of approximately $305 to $325 per ounce.
 
39

Merchant Banking
During the first quarter of 2007, Merchant Banking invested a further $27 in Gabriel Resources, obtained Oxiana Ltd. shares following the acquisition of Agincourt Resources by Oxiana Ltd. and recognized a $27 gain, realized a gain of $6 on the sale of other investments and recognized a $6 impairment of its investment in Queenstake Resources Ltd. for an other-than-temporary decline in value of marketable equity securities and warrants.
Merchant Banking’s royalty interests and equity investments generated $31 and $29 of Royalty and dividend income for the first quarter of 2007 and 2006, respectively.
Foreign Currency Exchange Rates
The Company’s foreign operations sell their gold and copper production based on U.S. dollar metal prices. Approximately 27% and 32%, of Newmont’s Costs applicable to sales were paid in local currencies during the first quarter of 2007 and 2006, respectively. Variations in the local currency exchange rates in relation to the U.S. dollar at Newmont’s foreign mining operations increased consolidated Costs applicable to sales per ounce by approximately $6 during the first quarter as compared to the first quarter of 2006.
Liquidity and Capital Resources
Cash Provided from Operating Activities
Net cash provided from continuing operations decreased 75% for the first quarter of 2007 compared to 2006. Cash flow from operations during 2007 was negatively impacted by fewer gold ounces sold and higher operating costs, partially offset by higher realized gold and copper prices and higher copper pounds sold, as discussed above in Consolidated Financial Results . A $263 decrease in  net operating assets and liabilities (Note 18) also impacted cash flow from operations during the first quarter of 2007.
Investing Activities
Net cash used in investing activities was $390 during the first quarter of 2007 compared to $257 during the same period of 2006.
Additions to property, plant and mine development were as follows:

 	  	Three Months Ended March 31,	
 	  	2007	  	2006	
Nevada, USA	  	$	158	  	$	154	
Yanacocha, Peru	  	 	56	  	 	56	
Australia/New Zealand:	  			  			
Tanami, Australia	  	 	6	  	 	4	
Kalgoorlie, Australia	  	 	2	  	 	3	
Jundee, Australia	  	 	9	  	 	5	
Pajingo, Australia	  	 	2	  	 	3	
Martha, New Zealand	  	 	8	  	 	3	
Boddington, Australia	  	 	70	  	 	4	
Other, Australia	  	 	1	  	 	1	
	  	 	 	  	 	 	
	  	 	98	  	 	23	
	  	 	 	  	 	 	
Batu Hijau, Indonesia	  	 	7	  	 	63	
Africa:	  			  			
Ahafo, Ghana	  	 	31	  	 	54	
Akyem, Ghana	  	 	6	  	 	11	
	  	 	 	  	 	 	
	  	 	37	  	 	65	
	  	 	 	  	 	 	
Other Operations:	  			  			
Kori Kollo, Bolivia	  	 	––	  	 	––	
La Herradura, Mexico	  	 	3	  	 	2	
	  	 	 	  	 	 	
	  	 	3	  	 	2	
	  	 	 	  	 	 	
Merchant Banking	  	 	––	  	 	1	
Corporate and Other	  	 	3	  	 	3	
	  	 	 	  	 	 	
	  	$	362	  	$	367	
	  	 	 	  	 	 	
Capital expenditures in Nevada during the first quarter of 2007 were primarily due to the construction of the power plant, mine equipment replacement and sustaining mine development. Yanacocha capital expenditures were primarily on construction of the gold
 
40

mill and leach pad expansions. Capital expenditures in Australia/New Zealand largely resulted from the continued construction of the Boddington project. Remaining capital expenditures at Boddington are expected to change by roughly $8 for every $0.01 move in the Australian dollar exchange rate from $0.77. Batu Hijau’s capital expenditures were predominately used for sustaining mine development. Capital expenditures at Ahafo were mainly as a result of continued risk mitigation for power shortages and sustaining development. Newmont expects to spend $1,800 to $2,000 on capital expenditures in 2007.
Capital expenditures in Nevada during the first quarter of 2006 related to activities for the development of the Leeville, Phoenix, and Power Plant projects, and mine equipment replacement. Yanacocha capital expenditures were for continuing leach pad construction, mine development and mine equipment. Australia/New Zealand capital expenditures resulted from mine development and underground fleet replacement. Expenditures at Batu Hijau primarily included the purchase of additional surface mining equipment. Capital expenditures at Ahafo resulted from construction and development.
Investments in marketable debt and equity securities, net.  The Company had net proceeds of $nil and $297 from auction rate marketable debt securities during the first quarter of 2007 and 2006, respectively. The Company accounts for these investments as short-term available-for-sale marketable debt securities.
During the first quarter of 2007, the Company purchased additional marketable equity securities of Gabriel Resources for $27 and other marketable equity securities for $2.
Acquisitions.  In March 2006, Newmont acquired Newcrest Mining Limited’s 22.22% interest in the Boddington unincorporated joint venture, bringing its interest in the project to 66.67%, for cash consideration of $164. In January 2006, Newmont acquired the remaining 15% interest in the Akyem project for cash consideration of $23, bringing its interest in the project to 100%.
Financing Activities
Net cash used in financing activities was $50 and $80 during the first quarter of 2007 and 2006, respectively.
During the first quarter of 2007, the Company made scheduled debt repayments of $21 related to the sale-leaseback of the refractory ore treatment plant, classified as a capital lease.
Scheduled minimum debt repayments are $138 for the remainder of 2007, $243 in 2008, $125 in 2009, $133 in 2010, $322 in 2011 and $929 thereafter. Newmont expects to be able to fund maturities of its debt from Net cash provided by operating activities , short-term investments, existing cash balances or available credit facilities. Effective April 24, 2007, the Company renegotiated the terms of its uncollateralized $1,250 revolving credit facility, increasing the facility amount to $2,000 and extending the maturity date to April 2012.
Approximately $480 of the total scheduled minimum long-term debt repayments at March 31, 2007 relate to the project financing facility for Batu Hijau, which is non-recourse to Newmont. Approximately $87 of this facility is classified as a current liability. Additionally, PT Newmont Nusa Tenggara shareholder loans of $36 at March 31, 2007 from one of its shareholders, Nusa Tenggara Mining Corporation, are payable on demand, subject to the project financing facility subordination terms, and are also non-recourse to Newmont. This amount is also classified as a current liability.
At March 31, 2007, the Company was in compliance with all required debt covenants and other restrictions related to its debt agreements.
The Company declared a regular quarterly dividend totaling $0.10 per common share through March 31, 2007 paid on March 29, 2007. Additionally, Newmont Mining Corporation of Canada Limited, a subsidiary of the Company, declared regular quarterly dividends on its exchangeable shares totaling CDN$0.1185 per share. The amount paid to common stockholders in the first quarter of 2007 and 2006 were $45 each. The Company also used $1 and $45 to pay dividends to minority interests for the first quarter of 2007 and 2006, respectively.
During the first quarter of 2007 and 2006, respectively, the Company issued 311,123 and 994,994 common shares for proceeds of $9 and $38, related to the exercise of employee stock options.
Off-Balance Sheet Arrangements
The Company has the following off-balance sheet arrangements: operating leases (as disclosed in Note 26 to the Consolidated Financial Statements in the Company’s Annual Report on Form 10-K for the year ended December 31, 2006, filed on February 26, 2007) and $475 of outstanding letters of credit, surety bonds and bank guarantees. Newmont also provides a contingent support line of credit to PT Newmont Nusa Tanggara of which Newmont’s pro-rata share is $37. Batu Hijau has sales agreements to sell copper
 
41

concentrates at market prices as follows (in thousands of tons): 776 for the remainder of 2007; 786 in 2008; 695 in 2009; 681 in 2010 and 2011; and 1,977 thereafter.
The Company has forward sales contracts to deliver gold at the lower of the spot price on the delivery date or the capped price ranging from $381 to $392 per ounce as follows (ounces in thousands): 1,000 in 2008; 600 in 2009; and 250 in 2011. For information regarding these agreements, see Item 3, Provisional Copper and Gold Sales and Price-capped Sales Contracts, below.
Environmental
The Company’s mining and exploration activities are subject to various federal and state laws and regulations governing the protection of the environment. These laws and regulations are continually changing and are generally becoming more restrictive. The Company conducts its operations so as to protect the public health and environment and believes its operations are in compliance with all applicable laws and regulations in all material respects. The Company has made, and expects to make in the future, expenditures to comply with such laws and regulations, but cannot predict the amount of such future expenditures. Estimated future reclamation costs are based principally on legal and regulatory requirements. At March 31, 2007 and December 31, 2006, $522 and $520, respectively, were accrued for reclamation costs relating to currently producing mineral properties.
In addition, the Company is involved in several matters concerning environmental obligations associated with former mining activities. Generally, these matters concern developing and implementing remediation plans at the various sites involved. The Company believes that the related environmental obligations associated with these sites are similar in nature with respect to the development of remediation plans, their risk profile and the compliance required to meet general environmental standards. Based upon the Company’s best estimate of its liability for these matters, $81 and $85 were accrued for such obligations at March 31, 2007 and December 31, 2006, respectively. Depending upon the ultimate resolution of these matters, the Company believes that it is reasonably possible that the liability for these matters could be as much as 93% greater or 28% lower than the amount accrued at March 31, 2007. The amounts accrued for these matters are reviewed periodically based upon facts and circumstances available at the time. Changes in estimates are charged to Costs and expenses, other in the period estimates are revised.
For more information on the Company’s reclamation and remediation liabilities, see Notes 17 and 21 to the Condensed Consolidated Financial Statements.
During the first quarter of 2007 and 2006, capital expenditures were approximately $9 and $22, respectively, to comply with environmental regulations. Ongoing costs to comply with environmental regulations have not been a significant component of operating costs.
Newmont spent $3 and $2, respectively, during the first quarter of 2007 and 2006 for environmental obligations related to the former mining sites discussed in Note 21 to the Condensed Consolidated Financial Statements.
Recently Adopted Accounting Pronouncements
See Note 2 of the Notes to Condensed Consolidated Financial Statements for a discussion of the impact of adopting FASB Interpretation No. 48, “Accounting for Uncertainty in Income Taxes,” on January 1, 2007.
Recently Issued Accounting Pronouncements
In February 2007, the FASB issued FASB Statement No. 159, “The Fair Value Option for Financial Assets and Financial Liabilities” (“FAS 159”). FAS 159 permits entities to choose to measure many financial instruments and certain other items at fair value, with the objective of improving financial reporting by mitigating volatility in reported earnings caused by measuring related assets and liabilities differently without having to apply complex hedge accounting provisions. The provisions of FAS 159 are effective for the Company’s fiscal year ending December 31, 2008. The Company is currently evaluating the impact that the adoption of this statement will have on the Company’s consolidated financial position, results of operations and disclosures.
In September 2006, the FASB issued FASB Statement No. 157, “Fair Value Measurements” (“FAS 157”). FAS 157 defines fair value, establishes a framework for measuring fair value in generally accepted accounting principles, and expands disclosures about fair value measurements. The provisions for FAS 157 are effective for the Company’s fiscal year ending December 31, 2008. The Company is currently evaluating the impact that the adoption of this statement will have on the Company’s consolidated financial position, results of operations and disclosures.
 
42

Safe Harbor Statement
Certain statements contained in this report (including information incorporated by reference) are “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, and are intended to be covered by the safe harbor provided for under these sections. Our forward-looking statements include, without limitation: (a) statements regarding future earnings, and the sensitivity of earnings to gold and other metal prices; (b) estimates of future mineral production and sales for specific operations and on a consolidated basis; (c) estimates of future production costs and other expenses, for specific operations and on a consolidated basis; (d) estimates of future cash flows and the sensitivity of cash flows to gold and other metal prices; (e) estimates of future capital expenditures and other cash needs for specific operations and on a consolidated basis and expectations as to the funding thereof; (f) statements as to the projected development of certain ore deposits, including estimates of development and other capital costs, financing plans for these deposits, and expected production commencement dates; (g) estimates of future costs and other liabilities for certain environmental matters; (h) estimates of reserves, and statements regarding future exploration results and reserve replacement; (i) statements regarding modifications to Newmont’s hedge positions; (j) statements regarding future transactions relating to portfolio management or rationalization efforts; and (k) projected synergies and costs associated with acquisitions and related matters.
Where we express an expectation or belief as to future events or results, such expectation or belief is expressed in good faith and believed to have a reasonable basis. However, our forward-looking statements are subject to risks, uncertainties, and other factors, which could cause actual results to differ materially from future results expressed, projected, or implied by those forward-looking statements. Important factors that could cause actual results to differ materially from such forward-looking statements (“cautionary statements”) are disclosed under “Risk Factors” in the Newmont Annual Report on Form 10-K for the year ended December 31, 2006, as well as in other filings with the Securities and Exchange Commission. Many of these factors are beyond Newmont’s ability to control or predict. Given these uncertainties, readers are cautioned not to place undue reliance on our forward-looking statements.
All subsequent written and oral forward-looking statements attributable to Newmont or to persons acting on its behalf are expressly qualified in their entirety by the cautionary statements. Newmont disclaims any intention or obligation to update publicly any forward-looking statements, whether as a result of new information, future events or otherwise, except as may be required under applicable securities laws.
 
ITEM 3.	QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK (dollars in millions, except per ounce and per pound amounts).	
Metal Prices
Changes in the market price of gold significantly affect the Company’s profitability and cash flow. Gold prices can fluctuate widely due to numerous factors, such as demand; forward selling by producers; central bank sales, purchases and lending; investor sentiment; the strength of the U.S. dollar and global mine production levels. Changes in the market price of copper also affects the Company’s profitability and cash flow. Copper is traded on established international exchanges and copper prices generally reflect market supply and demand, but can also be influenced by speculative trading in the commodity or by currency exchange rates.
Newmont had the following derivative contracts outstanding at March 31, 2007:

 	  	Expected Maturity Date	  	Fair Value	 	
 	  	2007	  	2008	  	Total/
Average	  	At March 31,
2007	 	 	At December 31,
2006	 	
Copper Collar Contracts (1) ($ denominated):	  			  			  			  				 				
Pounds (millions)	  	 	13	  	 	––	  	 	13	  	$	(21	) (2)	 	$	(149	) (3)	
Average cap price	  	$	1.43	  	$	––	  	$	1.43	  				 				
Average floor price	  	$	1.10	  	$	––	  	$	1.10	  				 				
S/IDR Forward Purchase Contracts (1) :	  			  			  			  				 				
$ (millions)	  	$	43	  	$	3	  	$	46	  	$	2	 	 	$	4	 	
Average rate (IDR/$)	  	 	9,606	  	 	9,365	  	 	9,590	  				 				

(1)	 	56.25% guaranteed by Newmont, 43.75% guaranteed by an affiliate of Sumitomo Corporation, delivered in the first quarter of 2007, awaiting final settlement.	

(2)	 	The fair value does not include amounts payable ($20) on derivative contracts that were closed out in March 2007 with the net settlement due in April 2007.	

(3)	 	The fair value does not include amounts payable ($24) on derivative contracts that were closed out in December 2006 with the net settlement due and paid in January 2007.	
 
43

Provisional Copper and Gold Sales
The Company’s copper and gold provisional sales contain an embedded derivative that is required to be separated from the host contract for accounting purposes. The host contract is the receivable from the sale of the copper concentrates at the forward London Metal Exchange price at the time of sale. The embedded derivative, which does not qualify for hedge accounting, is marked to market through earnings each period prior to final settlement.
At March 31, 2007 and 2006, Batu Hijau had the following gross revenues before treatment and refining charges subject to final price adjustments:

 	  	At March 31,	 	
 	  	2007	 	 	2006	 	
Gross revenue subject to final price adjustments	  				 				
Copper	  	$	386	 	 	$	377	 	
Gold	  	$	33	 	 	$	15	 	
			
The average final price adjustments realized were as follows:	  				 				
 	  	Three Months Ended March 31,	 	
 	  	2007	 	 	2006	 	
Average final price adjustments	  				 				
Copper	  	 	(19	)%	 	 	26	%	
Gold	  	 	2	%	 	 	9	%	
Price-Capped Forward Sales Contracts
In 2001, Newmont entered into transactions that closed out certain call options. The options were replaced with a series of forward sales contracts requiring physical delivery of the same quantity of gold over slightly extended future periods. Under the terms of the contracts, Newmont will realize the lower of the spot price on the delivery date or the capped price, ranging from $381 to $392 per ounce. The initial fair value of the forward sales contracts was recorded as deferred revenue. At March 31, 2006, $47 remained in deferred revenue and will be included in revenues as delivery occurs. The forward sales contracts are accounted for as normal sales contracts under SFAS No. 133 “Accounting for Derivative Instruments and Hedging Activities” and SFAS No. 138 “Accounting for Certain Derivative Instruments and Certain Hedging Activities-an Amendment to SFAS No. 133.” The fair value of these contracts are not included on the Condensed Consolidated Balance Sheets.
Newmont had the following price-capped forward sales contracts outstanding at March 31, 2007:

  	  	Expected Maturity Date or Transaction Date	  	Fair Value	 	
 	  	2008	  	2009	  	2011	  	Total/
Average	  	At March 31,
2007	 	 	At December 31,
2006	 	
Ounces (thousands)	  	 	1,000	  	 	600	  	 	250	  	 	1,850	  	$	(589	)	 	$	(534	)	
Average price	  	$	384	  	$	381	  	$	392	  	$	384	  				 				
Interest Rate Swap Contracts
At March 31, 2007, Newmont had $100 fixed to floating swap contracts designated as a hedge against a portion of its $275 8 5/8% debentures expiring in 2011. Under the hedge contract terms, the Company receives fixed-rate interest payments at 8.625% and pays floating-rate interest amounts based on periodic London Interbank Offered Rate (“LIBOR”) settings plus a spread, ranging from 2.60% to 3.49%. For the three months ended March 31, 2007 and 2006, these transactions had an insignificant impact on interest expense. The fair value of the interest rate swaps was $(1) and $1 at March 31, 2007 and December 31, 2006, respectively.
 
ITEM 4.	CONTROLS AND PROCEDURES.	
During the fiscal period covered by this report, the Company’s management, with the participation of the Chief Executive Officer and Chief Financial Officer of the Company, carried out an evaluation of the effectiveness of the design and operation of the Company’s disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)). Based on such evaluation, the Company’s Chief Executive Officer and Chief Financial Officer have concluded that, as of the end of the period covered by this report, the Company’s disclosure controls and procedures are effective to ensure that information required to be disclosed by the Company in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the required time periods.
 
44

Even an effective internal control system, no matter how well designed, has inherent limitations—including the possibility of the circumvention or overriding of controls. Therefore, the Company’s internal control over financial reporting can provide only reasonable assurance with respect to the reliability of the Company’s financial reporting and financial statement preparation.
There has been no change in the Company’s internal control over financial reporting during the most recent fiscal quarter that has materially affected, or that is reasonably likely to materially affect, the Company’s internal control over financial reporting.
 
45

PART II—OTHER INFORMATION
 
ITEM 1.	LEGAL PROCEEDINGS.	
Information regarding legal proceedings is contained in Note 21 to the Condensed Consolidated Financial Statements contained in this Report and is incorporated herein by reference.
 
ITEM 2.	ISSUER PURCHASES OF EQUITY SECURITIES.	

Period	  	(a)
Total
Number
of Shares
Purchased	 	 	(b)
Average
Price Paid
Per Share	  	(c)
Total Number of
Shares Purchased as
Part of Publicly
Announced Plans or
Programs	  	(d)
Maximum Number (or
Approximate Dollar Value) of
Shares that may yet be
Purchased under the Plans or
Programs	
January 1, 2007 through January 31, 2007	  	295	(1)	 	$	44.79	  	—	  	N/A	
February 1, 2007 through February 28, 2007	  	20,797	(2)	 	$	45.94	  	—	  	N/A	
March 1, 2007 through March 31, 2007	  	173	(3)	 	$	44.89	  	—	  	N/A	

(1)	 	Represents shares forfeited by an employee of previously granted restricted shares of common stock upon termination of employment.	

(2)	 	Represents shares delivered to the Company from restricted stock held by Company employees upon vesting for purpose of covering the recipients’ tax withholding obligations.	

(3)	 	Represents shares owned by an employee and delivered to the Company pursuant to his exercise of stock options using the “stock swap” method of exercise.	
 
ITEM 4.	SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.	
The following matters were voted upon at the annual meeting of stockholders held on April 24, 2007:
 
 	a)	 	Election of directors,	
 
 	b)	 	Ratify the Audit Committee’s appointment of PricewaterhouseCoopers LLP as Newmont’s independent auditors for 2007,	
 
 	c)	 	Consider and act upon a Stockholder Proposal regarding a report on Newmont’s Indonesian operations,	
 
 	d)	 	Consider and act upon a Stockholder Proposal regarding a report on Newmont’s community policies and practices, and	
 
 	e)	 	Consider and act upon a Stockholder Proposal regarding Independent Board Chairman.	
All matters voted on at the annual meeting were approved, except Proposal #5. The voting were as follows:
Proposal #1 - Election of Directors.

Name	  	Votes For	  	Votes Withheld	
Glen A. Barton	  	270,202,720	  	82,346,031	
Vincent. A. Calarco	  	323,497,085	  	29,051,666	
Noreen Doyle	  	323,467,169	  	29,081,582	
Veronica M. Hagen	  	323,461,338	  	29,087,413	
Michael S. Hamson	  	323,029,763	  	29,518,988	
Pierre Lassonde	  	323,092,090	  	29,456,661	
Robert J. Miller	  	322,502,870	  	30,045,881	
Wayne W. Murdy	  	322,328,609	  	30,220,142	
Robin A. Plumbridge	  	322,940,481	  	29,608,270	
John B. Prescott	  	270,337,077	  	82,211,674	
Donald C. Roth	  	270,339,419	  	82,209,332	
James V. Taranik	  	315,673,760	  	36,874,991	
 
46

Proposal #2 - Ratification of Auditors.

Votes For	  	347,515,604	  		  		  		
Votes Against	  	2,266,014	  		  		  		
Abstentions	  	2,767,133	  		  		  		
Proposal #3 - Stockholder Proposal regarding report on Newmont’s Indonesian Operations.

Votes For	  	15,548,618	  		  		  		
Votes Against	  	220,406,143	  		  		  		
Abstentions	  	40,057,181	  		  		  		
Broker Non-Votes	  	76,536,809	  		  		  		
Proposal #4 - Stockholder Proposal regarding report on Newmont’s Community Policies and Practices.

Votes For	  	252,893,088	  		  		  		
Votes Against	  	12,355,472	  		  		  		
Abstentions	  	10,841,117	  		  		  		
Broker Non-Votes	  	76,459,074	  		  		  		
Proposal #5 - Stockholder Proposal regarding Independent Board Chairman.

Votes For	  	141,526,762	  		  		  		
Votes Against	  	131,291,204	  		  		  		
Abstentions	  	3,189,667	  		  		  		
Broker Non-Votes	  	76,541,118	  		  		  		
There were no broker non-votes included in the results of the election of directors or the ratification of auditors.
 
ITEM 5.	OTHER INFORMATION.	
 
Item 1.01	Entry into a Material Definitive Agreement.	
On April 24, 2007, Newmont Mining Corporation and Newmont USA Limited amended and restated its existing credit agreement (the “Amended and Restated Credit Agreement”), dated as of July 30, 2004, as amended and restated as of July 28, 2005, among Newmont Mining Corporation and Newmont USA Limited, as borrowers, the lenders party thereto, JP Morgan Chase Bank, N.A., as Administrative Agent, The Bank of Nova Scotia and The Royal Bank of Scotland, plc, as co-syndication agents, and Citicorp USA, Inc. HSBC Bank USA, UBS Loan Finance LLC and Sumitomo Mitsui Banking Corporation, as Co-Documentation Agents.
The amendment to the Amended and Restated Credit Agreement (1) allows Newmont Mining Corporation and Newmont USA Limited to obtain additional commitments and incur loans and (2) extends the maturity date of the revolving credit facility from July 2010 to April 2012 and (3) increases the amount that Newmont Mining Corporation and Newmont USA Limited can borrow on a revolving basis from $1.25 billion to $2 billion.
The foregoing summary of the Amended and Restated Credit Agreement is qualified in its entirety by reference to the complete text of the Amended and Restated Credit Agreement, which is filed herewith as Exhibit 10.1 and incorporated by reference herein.
 
Item 5.02.	Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.	
On April 24, 2007, the Board of Directors (the “Board”) of Newmont Mining Corporation (the “Company”) elected Richard T. O'Brien as the Company’s President, effective as of April 24, 2007, which is subject to no fixed term. In addition to serving as President of the Company, Mr. O'Brien will continue to serve as Chief Financial Officer.
Mr. O'Brien, 53, has served as Executive Vice President and Chief Financial Officer since September 2006. He previously served as Senior Vice President and Chief Financial Officer from September 2005 to September 2006. Mr. O'Brien was Executive Vice President and Chief Financial Officer of AGL Resources from April 2001 to September 2005. Mr. O'Brien is also a Director of Inergy Holdings GP, LLC.
 
47

In connection with Mr. O'Brien's election as President, the Company will, on April 30, 2007, award to him shares of restricted stock at a fair market value of $1,400,000, two-thirds of which vest in two years and the remaining one-third of which vests in three years. The terms of the restricted stock are governed by the Newmont Mining Corporation 2005 Stock Incentive Plan and are subject to the terms set forth in the form of award agreement, a copy of which is filed herewith as Exhibit 10.2 and incorporated by reference herein.
There is no arrangement or understanding between Mr. O'Brien and any other persons pursuant to which he was elected as the President.
On April 25, 2007, Thomas L. Enos, Executive Vice President, Operations, informed the Company of his intention to retire as of August 1, 2007. Mr. Enos is the Company's principal operating officer.
 
Item 5.03.	Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.	
On April 24, 2007, the Board of Directors of the Company approved an amendment to Article IV, Section 1 of the Corporation’s By-Laws (the “By-Laws”), deleting the provision that the President shall be a Director.
The foregoing description of the amendment to the By-Laws is qualified in its entirety by reference to the complete text of the By-Laws, as amended and restated effective as of April 24, 2007. A copy of the By-Laws, as amended and restated, is filed herewith as Exhibit 3.1 and incorporated by reference herein.
 
ITEM 6.	EXHIBITS.	
 
(a)	 	The exhibits to this report are listed in the Exhibit Index.	
 
48

SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

 	  	N EWMONT M INING C ORPORATION
(Registrant)	
		
Date: April 27, 2007	  	/s/ R ICHARD T. O’B RIEN	
	  	Richard T. O’Brien	
	  	President and Chief Financial Officer
(Principal Financial Officer)	
		
Date: April 27, 2007	  	/s/ R USSELL B ALL	
	  	Russell Ball	
	  	Vice President and Chief Accounting Officer
(Principal Accounting Officer)	
 
49

NEWMONT MINING CORPORATION
EXHIBIT INDEX

Exhibit
Number	  	Description	
  3.1	  	By-Laws, as amended April 24, 2007 of the Registrant, filed herewith.	
		
10.1	  	Credit Agreement dated as of July 30, 2004, as amended and restated as of July 28, 2005, and as further amended and restated as of April 24, 2007, among Newmont Mining Corporation, Newmont USA Limited, the lenders party thereto, and JPMorgan Chase Bank, N.A., as Administrative Agent, filed herewith.	
		
10.2	  	Form of Award Agreement for Grant of Restricted Stock to certain Executive Officers, filed herewith.	
		
12.1	  	Computation of Ratio of Earnings to Fixed Charges, filed herewith.	
		
31.1	  	Certification Pursuant to Rule 13A-14 or 15-D-14 of the Securities Exchange Act of 1934, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 signed by the Principal Executive Officer, filed herewith.	
		
31.2	  	Certification Pursuant to Rule 13A-14 or 15-D-14 of the Securities Exchange Act of 1934, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 signed by the Chief Financial Officer, filed herewith.	
		
32.1	  	Statement Required by 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 signed by Principal Executive Officer, filed herewith. (1)	
		
32.2	  	Statement Required by 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 signed by Chief Financial Officer, filed herewith. (1)	

(1)	 	This document is being furnished in accordance with SEC Release Nos. 33-8212 and 34-47551.	
 
50
 
Exhibit 3.1

NEWMONT MINING CORPORATION

BY-LAWS

As Amended and Restated Effective January 1, 2007

 

NEWMONT MINING CORPORATION

BY-LAWS

ARTICLE I
STOCKHOLDERS
Section 1.  Annual Meeting . An annual meeting of the stockholders of the Corporation shall be held in each year at such place, and on such date and at such time, as the Board of Directors of the Corporation shall designate in a resolution duly adopted by it, for the purpose of electing Directors and transacting such other business as may properly be brought before the meeting.
Section 2.  Special Meetings . Special Meetings of the stockholders for any lawful purposes may be called by the Board of Directors or by the Chairman of the Board or by the President, and shall be called by the Chairman of the Board or by the President or the Secretary upon a written request stating the purposes thereof and signed by (i) a majority of the Board of Directors or (ii) stockholders owning 25% of the stock of the Corporation entitled to vote at such meeting. Each such meeting shall be held at such place, and on such date and at such time, as the Board of Directors of the Corporation shall designate in a resolution duly adopted by it, for the purposes stated in the notices thereof. Business transacted at any special meeting shall be limited to the purposes stated in the notices of the meeting.
Section 3.  Notices and Waivers . Written notices of every meeting of the stockholders, stating the time, place and purposes thereof, shall be given personally, by mail or other means of electronic transmission not less than ten days nor more than sixty days before the date on which the meeting is to be held, to each stockholder of record entitled to vote at such meeting. In the event of a special meeting called upon the written request of stockholders pursuant to Section 2 hereof, such notice shall describe any business set forth in the statement of purpose in such written request as well as any additional business proposed to be conducted at such meeting by the Board of Directors. If mailed, the notice shall be sent to the stockholders at their respective addresses appearing on the stock records of the Corporation or to such other addresses as they may have respectively designated in writing, and shall be deemed given when mailed. Without limiting the manner by which notice otherwise may be given effectively to stockholders, any notice to stockholders may be given by electronic transmission in accordance with applicable law. A waiver of any notice in writing by a stockholder or by electronic transmission given by the person or persons entitled to such notice before or after the time for the meeting, shall be deemed equivalent to such notice.

Section 4.  Notice of Stockholder Business and Nominations .
(i) Nominations of persons for election to the Board of Directors of the Corporation and the proposal of business to be considered by the stockholders may be made at an annual meeting of stockholders (a) pursuant to the Corporation’s notice of meeting, (b) by or at the direction of the Board of Directors or (c) by any stockholder of the Corporation who was a stockholder of record at the time of giving of notice provided for in this By-Law, who is entitled to vote at the meeting and who complies with the notice procedures set forth in this By-Law.
For nominations or other business to be properly brought before an annual meeting by a stockholder pursuant to clause (c) of the preceding paragraph, the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation and such other business must otherwise be a proper matter for stockholder action. To be timely, a stockholder’s notice shall be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the sixtieth day nor earlier than the close of business on the ninetieth day prior to the first anniversary of the preceding year’s annual meeting; provided, however, that in the event that the date of the annual meeting is more than thirty days before or more than sixty days after such anniversary date, notice by the stockholder to be timely must be so delivered not earlier than the close of business on the ninetieth day prior to such annual meeting and not later than the close of business on the later of the sixtieth day prior to such annual meeting or the tenth day following the day on which public announcement of the date of such meeting is first made by the Corporation. In no event shall the public announcement of an adjournment of an annual meeting commence a new time period for the giving of a stockholder’s notice as described above. Such stockholder’s notice shall set forth (a) as to each person whom the stockholder proposes to nominate for election or reelection as a director all information relating to such person that is required to be disclosed in solicitations of proxies for election of directors in an election contest, or is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and Rule 14a-11 thereunder (including such person’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected); (b) as to any other business that the stockholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business of such stockholder and the beneficial owner, if any, on whose behalf the proposal is made; and (c) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such stockholder, as they appear on the Corporation’s books, and of such beneficial owner and the class and number of shares of the Corporation which are owned beneficially and of record by such stockholder and such beneficial owner.
Notwithstanding anything in the second sentence of the preceding paragraph to the contrary, in the event that the number of directors to be elected to the Board of Directors of the Corporation is increased and there is no public announcement by the Corporation naming all of the nominees for director or specifying the size of the increased Board of Directors at least seventy days prior to the first anniversary of the preceding year’s annual meeting, a stockholder’s notice required by this By-Law shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to the
 
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Secretary at the principal executive offices of the Corporation not later than the close of business on the tenth day following the day on which such public announcement is first made by the Corporation.
(ii) Nominations of persons for election to the Board of Directors may be made at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation’s notice of meeting (a) by or at the direction of the Board of Directors or (b) provided that the Board of Directors has determined that directors shall be elected at such meeting, by any stockholder of the Corporation who is a stockholder of record at the time of giving of notice provided for in this By-Law, who shall be entitled to vote at the meeting and who complies with the notice procedures set forth in this By-Law. In the event the Corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Board of Directors, any such stockholder may nominate a person or persons (as the case may be), for election to such position(s) as specified in the Corporation’s notice of meeting, if the stockholder’s notice required by clause (i) of this By-Law shall be delivered to the Secretary at the principal executive offices of the Corporation not earlier than the close of business on the ninetieth day prior to such special meeting and not later than the close of business on the later of the sixtieth day prior to such special meeting or the tenth day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. In no event shall the public announcement of an adjournment of a special meeting commence a new time period for the giving of a stockholder’s notice as described above.
(iii) Only such persons who are nominated in accordance with the procedures set forth in this By-Law shall be eligible to serve as directors and only such business shall be conducted at a meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this By-Law. Except as otherwise provided by law, the Chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with the procedures set forth in this By-Law and, if any proposed nomination or business is not in compliance with this By-Law, to declare that such defective proposal or nomination shall be disregarded.
(iv) For purposes of this By-Law, “public announcement” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
Notwithstanding the foregoing provisions of this By-Law, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this By-Law. Nothing in this By-Law shall be deemed to affect any rights (i) of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act or (ii) of the holders of any series of Preferred Stock to elect directors under specified circumstances.
 
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Section 5.  Stockholder List . For every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of and the number of shares registered in the name of each such stockholder, shall be made and be open to the examination of any stockholder during ordinary business hours for at least ten days prior to the meeting at the Corporation’s principal place of business, and shall be produced at the meeting and be subject at all time during the meeting to the inspection of any stockholder present.
Section 6.  Quorum . Subject to the provisions of any applicable law or of the Corporation’s Certificate of Incorporation in respect of the vote that shall be required for a specified action, the holders of record of a majority of the capital stock of the Corporation issued and outstanding and entitled to vote at any meeting of its stockholders shall be required to be present in person or represented by proxy at such meeting in order to constitute a quorum for a transaction of any business. For purposes of determining the presence of a quorum, “capital stock of the Corporation” shall be deemed to include that number of shares of common stock equal to the number of votes that the Trustee is entitled to vote from time to time under the Special Voting Share of the Corporation created pursuant to the terms of the Voting and Exchange Trust Agreement dated February 16, 2002, between the Corporation, Newmont Mining Corporation of Canada Limited and Computershare Trust Company of Canada.
Section 7.  Adjournment . If at any meeting of the stockholders there is no quorum, the meeting may be adjourned from time to time by the Chairman of the Board or by a majority vote of the stockholders present or represented, without any notice other than by announcement at the meeting, until a quorum be obtained. Any meeting at which there is a quorum may also be adjourned, in like manner, for such time or upon such call as may be determined by vote. An adjourned meeting at which a quorum is present or represented may transact any business which might have been transacted at the meeting as first convened had there been a quorum.
Section 8.  Chairman and Secretary . At every meeting of the stockholders the presiding officer shall be the Chairman of the Board, or in his absence the President, and in their absence a Vice President of the Corporation. The Secretary or in his absence an Assistant Secretary of the Corporation shall act as secretary of the meeting, or in their absence the presiding officer may appoint any person present to act as secretary of the meeting.
Section 9.  Voting . Except as otherwise specifically provided herein or in the Certificate of Incorporation of the Corporation with respect to the ability of certain stockholders to cumulate votes in the election of directors, each stockholder present in person or by proxy at a meeting of the stockholder shall be entitled to one vote for each share of the capital stock of the Corporation registered in the name of such stockholder on the books of the Corporation and entitled to vote at such meeting. No proxy shall be voted on after three years from its date unless it provides for a longer period. All elections of Directors shall be by a plurality vote by ballot. All other matters shall be decided by a majority vote viva voce of the stockholders present in person or by proxy except as otherwise specifically provided by any applicable law, the Corporation’s Certificate of Incorporation or these By-Laws; provided, however, that the presiding officer shall have the right to determine whether a stock vote with respect to any matter shall be taken by ballot. On votes taken by ballot, each ballot shall state the name of the stockholder or proxy voting and the number of shares voted.
 
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Section 10.  Inspectors of Elections . The Corporation may, and to the extent required by law, shall, in advance of any meeting of stockholders, appoint one or more inspectors to act at the meeting and make a written report thereof. The Corporation may designate one or more alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at a meeting of stockholders, the person presiding at the meeting may, and to the extent required by law, shall, appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. Every vote taken by ballots shall be counted by a duly appointed inspector or inspectors.
Section 11.  Inspection of Books and Records . The Board of Directors shall determine whether and to what extent, and at what times and places and under what conditions and regulations, the books, accounts and records of the Corporation (other than the stock ledger), or any of them, shall be open to the inspection of any stockholder. No Stockholder shall have the right to inspect any books, accounts, records or documents of the Corporation unless expressly so authorized by the laws of the State of Delaware or by these By-Laws or by a resolution of the Board of Directors. The stock ledger shall be the only evidence as to the stockholders entitled to examine the stockholder list referred to in Section 5 of Article I hereof, and the original or a duplicate stock ledger containing the names and addresses of the stockholders and the number of shares held by them respectively shall be open at all times during usual business hours at the Corporation’s principal office to the examination of any stockholder.
Section 12.  Action by Written Consent . Any action which is required to be or may be taken at any annual or special meeting of stockholders of the Corporation may be taken without a meeting, without prior notice to stockholders and without a vote if consents in writing, setting forth the action so taken, shall have been signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or to take such action at a meeting at which all shares entitled to vote thereon were present and voted.
ARTICLE II
DIRECTORS
Section 1.  Number, Term and Qualification . The number of Directors which shall constitute the whole Board shall be not less than eight nor more than seventeen. Within these specified limits, the number of Directors shall be determined from time to time by the affirmative vote of a majority of the Directors then in office. Directors elected at any annual meeting of the stockholders or elected at any other time by the stockholders or by the Board of Directors as hereinafter provided, shall hold office until the next annual meeting of the stockholders and until their respective successors are elected and qualified. Directors need not be stockholders.
 
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Section 2.  Resignations; Vacancies . Any Director may resign at any time upon written notice to the Corporation. A resignation shall become effective when and as specified in the notice, or, in the absence of such specification, upon its acceptance by the Corporation. Vacancies occurring on the Board of Directors for any reason, and newly created directorships resulting from any increase in the number of Directors, may be filled by the affirmative vote of a majority of the Directors then in office, though less than a quorum.
Section 3.  Meetings and Notices . Meetings of the Board of Directors of the Corporation, regular or special, may be held either within or without the State of Delaware. Regular meetings of the Board may be held without notice at such time and place as the Board from time to time may by resolution determine. Special meetings of the Board, being all meetings other than its regular meetings, may be called by the Chairman or the President, and shall be called by the Secretary upon the written request of any two Directors. At least one day’s prior written notice of the time, place and purposes of every special meeting shall be given to each Director; provided, however, that no notice of any such meeting need be given to any Director who attends the meeting or signs before or after the meeting a written waiver of notice thereof. Notices may be delivered personally or sent by mail, telegraph, facsimile transmission or other form of electronic transmission, and shall be deemed given when so delivered or sent.
Section 4.  Quorum . At all meetings of the Board of Directors eight Directors shall constitute a quorum of the transaction of business, and the acts of a majority of the Directors present at any meeting at which a quorum is present shall be the acts of the Board, except as may be otherwise specifically provided by any applicable law or by the Corporation’s Certificate of Incorporation or by these By-Laws. If a quorum is not present at any meeting, a majority of the Directors present may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is obtained.
Section 5.  Order of Business . The order of business at meetings of the Board of Directors shall be as the Board may determine from time to time, or, subject to any such action by the Board, as determined by the Chairman of the meeting.
Section 6.  Powers . The Board of Directors shall manage and control the business, property and affairs of the Corporation, and shall have and may exercise all the powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these By-Laws directed or required to be exercised or done by the stockholders.
Section 7.  Compensation . The Directors may be paid as compensation for their services a periodic fee, or a fixed fee for attendance at each meeting of the Board of Directors or any Committee thereof, or both, and may be paid their expenses, if any, of attendance at Board or Committee meetings and may be paid in stock or stock options, all as the Board from time to time may determine, but otherwise shall not be entitled to any fees or compensation for their services as Directors. No such payment shall preclude any Director from serving the Corporation in any other capacity and receiving compensation therefor.
 
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ARTICLE III
EXECUTIVE COMMITTEE
Section 1.  Appointment, Number and Quorum . The Board of Directors, by the affirmative vote of a majority of the whole Board, may appoint an Executive Committee consisting of such number of the Directors not less than three as the Board may determine; provided, always, that the Chief Executive Officer shall at all times be appointed to the Committee. By similar action the Board may fill any vacancy in, change the membership of, or dissolve the Committee at any time in its discretion. At all meetings of the Committee a majority, but not less than three, of its members shall constitute a quorum for the transaction of business, and the affirmative vote of a majority of the whole Committee, but in no case less than three members, shall be necessary to adopt any resolution or to take any other action.
Any member of the Committee who ceases to be a Director shall cease ipso facto to be a member of the Committee. Any member may resign at any time upon written notice to the Corporation. A resignation shall become effective when and as specified in the notice, or, in the absence of such specification, upon its acceptance by the Corporation.
Section 2.  Powers and Proceedings . The Executive Committee during the intervals between the meetings of the Board of Directors, shall have and may exercise, insofar as permitted by law, all the powers of the Board of Directors, provided that the Committee shall not act to fill a vacancy on the Committee and shall not take any action contrary to any specific action or direction of the Board.
The Board of Directors may designate the Chairman of the Committee and prescribe rules governing its proceedings. The Committee may elect its own Chairman from its members, if he has not been designated by the Board, and may make its own rules of procedure insofar as they do not conflict with any rules prescribed by the Board or with these By-Laws. Minutes of all acts and proceedings of the Committee shall be kept in a proper record book and shall be laid before the Directors at their next meeting.
Section 3.  Compensation . The members of the Executive Committee may be paid such compensation for their services, and such expenses incurred by them in connection therewith, as the Board of Directors may determine, but otherwise shall not be entitled to any compensation for their services as such Committee members.
ARTICLE IV
OFFICERS
Section 1.  Officers, Election, Term and Vacancies . At its first meeting held after each annual meeting of the stockholders, the Board of Directors shall elect, as the officers of the Corporation to serve until their successors are elected and qualify, a Chairman of the Board, a President, one or more Vice Presidents (one or more of whom may be designated Executive Vice Presidents or Senior Vice Presidents by the Board), a Secretary, a Treasurer, and a Controller, and may elect or appoint such Assistant Secretaries, Assistant Treasurers, Assistant Controllers
 
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and other officers as the Board in its discretion may determine. If any such officers are not elected or appointed at such first meeting, they may be elected or appointed at any subsequent meeting of the Directors.
The Chairman of the Board shall be a Director, but no other officer need be a Director. Subject to the provisions of any applicable law, one person may hold two or more offices.
Any officer may resign at any time upon written notice to the Corporation. A resignation shall become effective when and as specified in the notice, or, in the absence of such specification, upon its acceptance by the Corporation. Any officer may be removed at any time, with or without cause, by the affirmative vote of a majority of the whole Board of Directors. Any vacancy occurring in any office for any reason may be filled by the Board of Directors.
Section 2.  Chairman of the Board . The Chairman of the Board shall preside at meetings of the Directors and at meetings of the stockholders. He shall have such other powers and duties as may be prescribed by the Board of Directors.
Section 3.  Chief Executive Officer . The Chairman of the Board or the President shall be designated by the Board of Directors to be the Chief Executive Officer of the Corporation. Such designee shall have and be responsible for the general management and control of all its business and affairs, subject only to the Board of Directors and the Executive Committee.
Subject to the control of the Board of Directors, the Chief Executive Officer shall have power to employ, appoint and discharge employees and agents of the Corporation and fix their compensation, to make and sign contracts and agreements in the name and on behalf of the Corporation, to sign certificates of stock of the Corporation, to sign proxies for or to attend and vote at meetings of stockholders of any other corporation in which the Corporation holds stock, and to sign in the name and on behalf of the Corporation other instruments and documents to be executed by it. He shall see that all books, records, reports, statements and certificates are properly made, kept and filed as required of the Corporation by any applicable law, and shall have such other powers and duties as may be prescribed by the Board of Directors.
Section 4.  President . The President shall be responsible for the operation of the business and affairs of the Corporation, subject to the direction of the Chairman of the Board and of the Board of Directors and the Executive Committee.
Section 5.  Vice Presidents . Each Vice President, Executive Vice President (if any) and Senior Vice President (if any) shall have such powers and duties as may be delegated to him by the Chief Executive Officer or as may be prescribed by the Board of Directors.
Section 6.  Secretary . The Secretary shall attend all meetings of the stockholders, Board of Directors and Executive Committee, and shall record all the proceedings and votes taken at such meetings in appropriate books kept by him for that purpose. He shall give, or cause to be given, all notices required by law or by these By-Laws to be given of all such meetings, and shall see that the list of stockholders required for every meeting of the stockholders is properly prepared and made and kept at the place of the meeting for at least ten days prior thereto.
 
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The Secretary shall keep or cause to be kept in safe custody the seal of the Corporation, its unissued stock certificates, stock transfer books, stock ledgers, and such other books, records, documents and papers of the Corporation as the Board of Directors may direct; provided, however, that the Transfer Agent, if one be appointed, shall have custody of the unissued stock certificates, stock transfer books and stock ledgers.
The Secretary shall have power to countersign or attest all contracts, agreements, stock certificates, proxies and other instruments and documents signed on behalf of the Corporation by the Chairman of the Board, the President or a Vice President, and to affix thereto the seal of the Corporation, and to certify all minutes and extracts from minutes of meetings of the stockholders, Board of Directors and Executive Committee, and all resolutions passed or adopted thereat.
He shall have such other powers and shall perform such other duties as may be prescribed by the Board of Directors, and, subject to the control of the Board, all such powers and duties as are generally incident to his office of Secretary.
Section 7.  Assistant Secretaries . Each Assistant Secretary shall have all the powers and may perform all the duties of the Secretary in the absence of disability of the Secretary unless the Board of Directors shall otherwise determine, and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors.
Section 8.  Treasurer . The Treasurer shall receive and have in his charge or custody the funds, securities and valuable effects of the Corporation, and shall deposit or keep same to the credit or in the name of the Corporation in such banks or depositories as the Board of Directors designates. He shall disburse the funds of the Corporation and dispose of its securities and valuable effects in his charge only as he may be authorized or directed by the Board of Directors or by an officer, committee or agent acting with and under the authority of the Board. He shall take and preserve proper vouchers or receipts for all disbursements.
The Treasurer shall keep full, accurate and current accounts of all receipts and disbursements of funds, the acquisitions and disposition of all securities and valuable effects, and all other financial transactions of the Corporation, in appropriate books kept by him for such purposes. He shall render such reports, accounts and statements of the Corporation’s financial transactions and conditions to the stockholders, Board of Directors, Executive Committee and the Chief Executive Officer as may be required or requested, and shall exhibit his books of account and records to the Chairman of the Board, the President, a Vice President, the Controller, or any Director upon request at the Corporation’s office where such books of records are kept.
The Treasurer shall have power on behalf of the Corporation to endorse for collection, bills, notes, drafts, checks and other instruments for payment of funds to the Corporation, and to sign receipts and vouchers for payments made to the Corporation. He shall sign or countersign all bills, notes, drafts, checks and other instruments for payments made by the Corporation, and all
 
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assignments or powers for transfers of securities and other valuable effects of the Corporation, and certificates of the stock Corporation provided, however, that the Board of Directors may authorize or require other officers or agents of the Corporation to sign or countersign in its name any such papers, instruments or documents.
He shall have such other powers and shall perform such other duties as may be prescribed by the Board of Directors, and, subject to the control of the Board, such powers and duties as are generally incident to his office of Treasurer.
Section 9.  Assistant Treasurers . Each Assistant Treasurer shall have all the powers and may perform all the duties of the Treasurer in case of the disability of the Treasurer unless the Board of Directors shall otherwise determine, and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors. He shall give a like bond or bonds, if any, as are given by the Treasurer.
Section 10.  Controller . The Controller shall have direct responsibility for and supervision of the accounting records of the Corporation and of its subsidiaries and managed affiliated corporations, and shall see that adequate examination and audits thereof are currently and regularly made. He shall prepare and file all tax returns, and shall prepare statements of operating and production costs, cash forecasts, and any other financial reports of the Corporation. He shall ascertain that the property of the Corporation is kept at all times properly and adequately insured, and shall have custody of any bonds given by the Treasurer or any Assistant Treasurer as above mentioned. He shall have such other powers and perform such other duties, as may be prescribed by the Board of Directors or be assigned to him by the Chairman of the Board.
Section 11.  Assistant Controllers . Each Assistant Controller shall have all the powers and may perform all of the duties of the Controller in case of the disability of the Controller unless the Board of Directors shall otherwise determine, and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors.
Section 12.  Other Officers . Each other officer elected or appointed by the Board of Directors shall have such powers and perform such duties as may be prescribed by the Board, and, subject to the control of the Board, such powers and duties are generally incident to his office.
ARTICLE V
CAPITAL STOCK
Section 1.  Stock Certificates and Uncertificated Shares . Certificates for shares of the capital stock of the Corporation shall be in such form, not inconsistent with any applicable law or the Corporation’s Certificate of Incorporation, as shall be prescribed or approved from time to time by the Board of Directors. Holders of the stock shall be entitled to have such certificates issued in the name of the Corporation, under its seal and signed by the Chairman of the Board, the President or a Vice President and by the Secretary or Treasurer or an Assistant Secretary or Assistant Treasurer, evidencing and certifying the number of shares owned by such respective stockholders in the Corporation.
 
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Such certificates may be so sealed and signed either manually or by facsimile seal or signatures, if and as permitted by law and authorized or approved by the Board of Directors. If any officer whose signature is used on any certificate shall cease to be such officer for any reason before the issuance or delivery of the certificate by the Corporation, the validity of the Certificate upon its issuance and delivery shall not be thereby affected.
The Board of Directors may authorize and require the signing of any certificate or certificates by a Transfer Agent and a Registrar, in addition to the signing by the officers of the Corporation.
Shares of capital stock of the Corporation shall be represented by certificates or shall be uncertificated. The Board of Directors may provide by resolution or resolutions that some or all of any or all classes or series of the capital stock of the Corporation shall be uncertificated. Any such resolution shall not apply to any such shares represented by a certificate theretofore issued until such certificate is surrendered to the Corporation. Within a reasonable time after the issuance or transfer of uncertificated shares, the Corporation shall send to the registered owner thereof a written statement of the information required on certificates by applicable law, rule or regulation.
Section 2.  Stock Transfers . The shares of stock of the Corporation shall be transferred only on the books of the Corporation by the holders thereof in person or by their duly authorized attorney, (a) in the case of shares represented by a certificate, upon surrender for cancellation of the certificates for the shares to be transferred, with a duly executed assignment or stock power endorsed thereupon or attached thereto, and accompanied by such other evidences of transfer of authority, such guarantees of signatures and such payments of stock transfer taxes or other charges as may be reasonably required, or (b) in the case of uncertificated shares, upon receipt of proper transfer instructions from the registered owner of such uncertificated shares, or from a duly authorized attorney or from an individual presenting proper evidence of succession, assignment or authority to transfer the stock.
The Board of Directors may appoint a Transfer Agent and a Registrar for the capital stock of the Corporation.
Section 3.  Lost Certificates . Unless otherwise determined by the Board of Directors, a new certificate or uncertificated share shall be issued in place of any certificate theretofore issued by the Corporation for its capital stock and alleged by the holder thereof to have been lost, stolen or destroyed; provided, however, that the applicant for any such new certificate or uncertificated share shall furnish to the Corporation evidence satisfactory to it of the alleged loss, theft or destruction, together with such bond or indemnification as the Board of Directors from time to time may require to indemnify the Corporation against an any claim that may be made against it or its officers or agents on account of a certificate alleged to have been lost, stolen or destroyed or the issuance of a new certificate or uncertificated share replacing it.
 
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Section 4.  Record Date . In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders, or to receive payment of any dividend or other distribution or allotment of any rights or to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may, except as otherwise required by law, fix a record date, which record date shall not precede the date on which the resolution fixing the record date is adopted and which record date shall not be more than sixty (60) nor less than ten (10) days before the date of any meeting of stockholders, nor more than sixty (60) days prior to the time for such other action as hereinbefore described; provided, however, that if no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held, and, for determining stockholders entitled to receive payment of any dividend or other distribution or allotment of rights or to exercise any rights of change, conversion or exchange of stock or for any other purpose, the record date shall be at the close of business on the day on which the Board of Directors adopts a resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
Section 5.  Registered Stockholders . The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of the State of Delaware.
Section 6.  Stock Ledger . The original or a duplicate stock ledger shall be kept at the Corporation’s principal office in the State of Delaware.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
Section 1.  Indemnification of Directors and Officers . The Corporation shall, to the fullest extent permitted by applicable law, as the same exists or may hereafter be amended (but in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide prior to such amendment), indemnify any person (and the heirs, executors and administrators thereof) who was or is made, or threatened to be made, a party to an action, suit or proceeding (whether civil, criminal, administrative or investigative, whether involving any actual or alleged breach of duty, neglect or error, any accountability, or any actual or alleged misstatement, misleading statement or other act or omission and whether brought or threatened in any court or administrative or legislative body or agency) including (i) an action by or in the right of the Corporation to procure a judgment in its favor and (ii) an action by or in the right of any other corporation of any type or kind, domestic or foreign, or any partnership, joint venture, trust, employee benefit plan or other enterprise, which any director or officer of the Corporation is serving or served as a director, officer or trustee at the request of the Corporation, by reason of the fact
 
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that he, his testator or intestate is or was a director or officer of the Corporation, or is serving or served such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise as a director, officer or trustee, against all expense, liability and loss (including attorneys’ fees, judgments, fines and amounts paid in settlement) actually and reasonably incurred by the person in connection with such action, suit or proceeding; provided, however, except as provided in Section 7 of this Article VI, with respect to proceedings to enforce rights to indemnification, the Corporation shall indemnify any such person in connection with an action, suit or proceeding (or part thereof) initiated by such person only if such action, suit or proceeding (or part thereof) is authorized by the Board of Directors of the Corporation.
Section 2.  Indemnification of Others . The Corporation shall indemnify other persons and reimburse the expenses thereof, to the extent required by applicable law, and may indemnify any other person to whom the Corporation is permitted to provide indemnification or the advancement of expenses, whether pursuant to rights granted pursuant to, or provided by, the Delaware General Corporation Law or otherwise.
Section 3.  Advances or Reimbursement of Expenses . The Corporation shall, to the fullest extent permitted by applicable law, from time to time, reimburse or advance to any person referred to in Section 1 the funds necessary for payment of expenses, including attorneys’ fees, incurred in connection with any action, suit or proceeding referred to in Section 1, upon receipt of a written undertaking by or on behalf of such person to repay such amount(s) if it shall ultimately be determined that such person is not entitled to be indemnified by the Corporation under this Article VI or otherwise.
Section 4.  Service of Certain Entities Deemed Requested . Any director or officer of the Corporation servicing (i) another corporation, of which a majority of the shares entitled to vote in the election of its directors is held by the Corporation, or (ii) any employee benefit plan of the Corporation or any corporation referred in clause (i), in any capacity shall be deemed to be doing so at the request of the Corporation.
Section 5.  Interpretation . Any person entitled to be indemnified or to the reimbursement or advancement of expenses as a matter of right pursuant to this Article may elect to have the right to indemnification (or advancement of expenses) interpreted on the basis of the applicable law in effect at the time of the occurrence of the event or events giving rise to the action, suit or proceeding, to the extent permitted by applicable law, or on the basis of the applicable law in effect at the time indemnification is sought.
Section 6.  Indemnification Right . The right to be indemnified or to the reimbursement or advancement of expenses pursuant to this Article (i) is a contract right pursuant to which the person entitled thereto may bring suit as if the provisions hereof were set forth in a separate written contract between the Corporation and the director or officer, (ii) is intended to be retroactive and shall be available with respect to events occurring prior to the adoption hereof, and (iii) shall continue to exist after the rescission or restrictive modification hereof with respect to events occurring prior thereto.
 
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Section 7.  Indemnification Claims . If a request to be indemnified or for the reimbursement or advancement of expenses pursuant hereto is not paid in full by the Corporation within thirty days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation or recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled also to be paid the expenses of prosecuting such claim. Neither the failure of the Corporation (including its Directors who are not parties to such action, suit or proceeding, a committee of such directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of or reimbursement or advancement of expenses to the claimant is proper in the circumstances, nor an actual determination by the Corporation (including its Directors who are not parties to such action, suit or proceeding, a committee of such directors, independent legal counsel, or its stockholders) that the claimant is not entitled to indemnification or to the reimbursement or advancement of expenses, shall be a defense to the action or create a presumption that the claimant is not so entitled.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 1.  Fiscal Year . The fiscal year of the Corporation, and of each of its subsidiaries, shall be the calendar year.
Section 2.  Offices . The principal office of the Corporation in the State of Delaware shall be maintained in the City of Wilmington, County of New Castle. The Corporation may have offices at such other places within or without the State of Delaware as the Board of Directors from time to time may determine.
Section 3.  Resident Agent . The Resident Agent of the Corporation in charge of its principal office in the State of Delaware shall be Corporation Service Company.
Section 4.  Seal . The seal of the Corporation shall have inscribed thereon the name of the Corporation, the year of its incorporation and the words “Corporate Seal, Delaware.”
Section 5.  Dividends . Subject to all applicable laws and the Certificate of Incorporation, dividends upon the capital stock of the Corporation may be declared by the Board of Directors, payable in cash, in property or in shares of the capital stock of the Corporation.
Section 6.  Amendments . Subject to any By-Laws made by the stockholders, the Board of Directors may make By-Laws, and from time to time may alter, amend or repeal any By-Law or By-Laws; but any By-Laws made by the Board of Directors may be altered or repealed by the stockholders at any annual meeting, or at any special meeting provided notice of such proposed alteration or repeal be included in the notice of such special meeting.
Section 7.  Separability . In case any By-Law or provision in any By-Law shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining By-Laws or remaining provisions of such By-Law shall not in any way be affected or impaired thereby.
 
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Exhibit 10.1
EXECUTION VERSION

CREDIT AGREEMENT
dated as of
July 30, 2004,
as amended and restated as of
July 28, 2005, and
as amended and restated as of
April 24, 2007,
among
NEWMONT MINING CORPORATION,
NEWMONT USA LIMITED,
The Lenders Party Hereto
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent,
THE BANK OF NOVA SCOTIA,
THE ROYAL BANK OF SCOTLAND PLC,
as Co-Syndication Agents
and
CITICORP USA, INC.,
HSBC BANK USA,
UBS LOAN FINANCE LLC,
SUMITOMO MITSUI BANKING CORPORATION
as Co-Documentation Agents

J. P. MORGAN SECURITIES INC.,
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	  	18	
SECTION 1.03.	  	Terms Generally	  	19	
SECTION 1.04.	  	Accounting Terms; GAAP	  	19	
			
	  	ARTICLE II	  		
			
	  	The Credits	  		
			
SECTION 2.01.	  	Commitments	  	20	
SECTION 2.02.	  	Loans and Borrowings	  	20	
SECTION 2.03.	  	Requests for Revolving Borrowings	  	21	
SECTION 2.04.	  	Competitive Bid Procedure	  	21	
SECTION 2.05.	  	Swingline Loans	  	24	
SECTION 2.06.	  	Letters of Credit	  	25	
SECTION 2.07.	  	Funding of Borrowings	  	29	
SECTION 2.08.	  	Interest Elections	  	30	
SECTION 2.09.	  	Termination, Reduction and Extension of Commitments; Increase of Commitments.	  	31	
SECTION 2.10.	  	Repayment of Loans; Evidence of Debt	  	34	
SECTION 2.11.	  	Prepayment of Loans	  	35	
SECTION 2.12.	  	Fees	  	36	
SECTION 2.13.	  	Interest	  	37	
SECTION 2.14.	  	Alternate Rate of Interest	  	38	
SECTION 2.15.	  	Increased Costs	  	39	
SECTION 2.16.	  	Break Funding Payments	  	40	
SECTION 2.17.	  	Taxes	  	41	
SECTION 2.18.	  	Payments Generally; Pro Rata Treatment; Sharing of Set-offs	  	43	
SECTION 2.19.	  	Mitigation Obligations; Replacement of Lenders	  	45	
			
	  	ARTICLE III	  		
			
	  	Representations and Warranties	  		
			
SECTION 3.01.	  	Organization; Powers	  	46	

					
SECTION 3.02.	  	Authorization; Enforceability	  	46	
SECTION 3.03.	  	Governmental Approvals; No Conflicts	  	46	
SECTION 3.04.	  	Financial Condition; No Material Adverse Change	  	46	
SECTION 3.05.	  	Properties	  	47	
SECTION 3.06.	  	Litigation and Environmental Matters	  	47	
SECTION 3.07.	  	Compliance with Laws and Agreements	  	47	
SECTION 3.08.	  	Investment Company Status	  	47	
SECTION 3.09.	  	Taxes	  	48	
SECTION 3.10.	  	ERISA	  	48	
SECTION 3.11.	  	Disclosure	  	48	
SECTION 3.12.	  	Federal Regulations	  	48	
SECTION 3.13.	  	Subsidiaries	  	49	
			
	  	ARTICLE IV	  		
			
	  	Conditions	  		
			
SECTION 4.01.	  	Restatement Effective Date	  	49	
SECTION 4.02.	  	Each Credit Event	  	50	
			
	  	ARTICLE V	  		
			
	  	Affirmative Covenants	  		
			
SECTION 5.01.	  	Financial Statements and Other Information	  	51	
SECTION 5.02.	  	Notices of Material Events	  	52	
SECTION 5.03.	  	Existence; Conduct of Business	  	53	
SECTION 5.04.	  	Payment of Obligations	  	53	
SECTION 5.05.	  	Maintenance of Properties; Insurance	  	53	
SECTION 5.06.	  	Books and Records; Inspection Rights	  	54	
SECTION 5.07.	  	Compliance with Laws	  	54	
SECTION 5.08.	  	Use of Proceeds	  	54	
			
	  	ARTICLE VI	  		
			
	  	Negative Covenants	  		
			
SECTION 6.01.	  	Consolidated Indebtedness	  	54	
SECTION 6.02.	  	Liens	  	54	
SECTION 6.03.	  	Fundamental Changes	  	56	
SECTION 6.04.	  	Intercompany Indebtedness of Guarantors	  	56	
SECTION 6.05.	  	Indebtedness of Certain Subsidiary Guarantors	  	57	

					
	 	ARTICLE VII	  		
			
	 	Events of Default	  		
			
	 	ARTICLE VIII	  		
			
	 	The Administrative Agent	  		
			
	 	ARTICLE IX	  		
			
	 	Guarantee	  		
			
	 	ARTICLE X	  		
			
	 	Miscellaneous	  		
SECTION 10.01.	 	Notices	  	64	
SECTION 10.02.	 	Waivers; Amendments	  	65	
SECTION 10.03.	 	Expenses; Indemnity; Damage Waiver	  	66	
SECTION 10.04.	 	Successors and Assigns	  	67	
SECTION 10.05.	 	Survival	  	70	
SECTION 10.06.	 	Counterparts; Integration; Effectiveness	  	71	
SECTION 10.07.	 	Severability	  	71	
SECTION 10.08.	 	Right of Setoff	  	71	
SECTION 10.09.	 	Governing Law; Jurisdiction; Consent to Service of Process	  	71	
SECTION 10.10.	 	WAIVER OF JURY TRIAL	  	72	
SECTION 10.11.	 	Headings	  	72	
SECTION 10.12.	 	Confidentiality	  	73	
SECTION 10.13.	 	USA Patriot Act	  	73	
			
	 	ARTICLE XI	  		
			
	 	Treatment of Loans for Purposes of Regulation U	  		
			
SECTION 11.01.	 	Treatment for Purposes of Regulation U	  	74	
SECTION 11.02.	 	Allocation of Credit	  	74	
SECTION 11.03.	 	Allocation of Collateral	  	74	
SECTION 11.04.	 	Allocation of Payments	  	75	
SECTION 11.05.	 	Information	  	76	
SECTION 11.06.	 	Individual Lender Responsibility	  	76	

			
SCHEDULES	  		
		
Schedule 2.01 —	  	Commitments	
Schedule 2.06 —	  	Existing Letters of Credit	
Schedule 3.06 —	  	Disclosed Matters	
Schedule 3.13 —	  	Subsidiaries	
Schedule 6.02 —	  	Existing Liens	
Schedule 6.04 —	  	Indebtedness of Certain Guarantors as of the Restatement Effective Date	
		
EXHIBITS:	  		
		
Exhibit A	  	Form of Assignment and Acceptance	
Exhibit B-1	  	Form of Opinion of Blake M. Rhodes, Vice President and Chief Counsel of the Company	
Exhibit B-2	  	Form of Opinion of White & Case LLP, Special Counsel for the Company	
Exhibit C	  	Form of Assumption Agreement	
Exhibit D	  	Non-Bank Certificate	
Exhibit E	  	Form of Guarantee Agreement	
Exhibit F	  	Form of Subordination Agreement	

CREDIT AGREEMENT dated as of July 30, 2004, as amended and restated as of July 28, 2005, and as amended and restated as of April 24, 2007 (the “ Agreement ”), among NEWMONT MINING CORPORATION, a Delaware corporation (the “ Company ”), NEWMONT USA LIMITED, a Delaware corporation and a wholly owned subsidiary of the Company (“ Newmont USA ”, and together with the Company, the “ Borrowers ”), the Lenders party hereto and JPMORGAN CHASE BANK, N.A., as Administrative Agent.
On the Effective Date (such term and each other capitalized term used and not otherwise defined herein having the meaning assigned to it in Article I), the Borrowers, the Administrative Agent and certain of the Lenders entered into the Original Agreement pursuant to which the lenders thereunder agreed to extend credit to the Borrowers on a revolving credit basis. The parties hereto desire to amend the Original Agreement and to restate it in its entirety in the form hereof to give effect to such amendment.
The Borrowers have requested the Lenders to extend credit in the form of Commitments under which the Borrowers may obtain Revolving Loans from time to time on or after the Restatement 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 $2,000,000,000 (as such amount may be increased pursuant to Section 2.09(d)). The Borrowers have also requested the Lenders provide procedures under which the Borrowers may obtain Competitive Loans and Swingline Loans from the Lenders and Letters of Credit. The proceeds of Borrowings hereunder made after the Restatement Effective Date are to be used for general corporate purposes of the Borrowers and their subsidiaries and the Letters of Credit will be used to support payment obligations incurred in the ordinary course of business by the Borrowers and their subsidiaries.
The Lenders are willing to establish the credit facility referred to in the preceding paragraph upon the terms and subject to the conditions set forth herein. Accordingly, in consideration of the mutual agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree that the Original Agreement shall, upon satisfaction (or waiver) of the conditions set forth in Section 4.01, be amended and restated to read in its entirety 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 Borrowers, among the Borrowers, 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 Borrowers.
“ 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)).
“ 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 greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on such day plus   1 / 2 of 1%. Any change in the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective from and including the effective date of such change in the Prime Rate, or the Federal Funds Effective Rate, respectively.
“ Applicable Percentage ” means, with respect to any Lender, the percentage of the total Commitments represented by such 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.
 
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“ Applicable Rate ” means, for any day on or after the Restatement Effective Date, with respect to any Eurodollar Revolving Loan or with respect to the facility fees payable hereunder, as the case may be, the applicable rate per annum set forth below under the caption “Eurodollar Spread” or “Facility Fee Rate”, as the case may be, based upon the ratings by Moody’s and S&P applicable on such date to the Index Debt:

Index Debt Ratings	  	Eurodollar Spread	 	 	Facility Fee Rate	 	
Category 1
A/A2 or higher	  	0.15	%	 	0.050	%	
Category 2
A-/A3	  	0.19	%	 	0.060	%	
Category 3
BBB+/Baa1	  	0.28	%	 	0.070	%	
Category 4
BBB/Baa2	  	0.36	%	 	0.090	%	
Category 5
BBB-/Baa3	  	0.425	%	 	0.125	%	
Category 6
£ BB+/Ba1	  	0.700	%	 	0.175	%	
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 6; (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 (A) one of the two ratings is more than one Category lower than the other and neither rating is in Category 6, in which case the Applicable Rate shall be determined by reference to the Category next below that of the higher of the two ratings or (B) either rating is or is deemed to be in Category 6, in which case the Applicable Rate shall be determined by reference to Category 6 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 Company 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.
“ 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 10.04), and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by the Administrative Agent.
 
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“ Assumption Agreement ” means an assumption agreement in the form of Exhibit C or any other form approved by the Administrative Agent entered into by any Person that has merged or consolidated with the Company where such Person is the surviving corporation.
“ Auction Rate Securities ” means any auction rate securities having a rating of AA- or better from S&P or Aa3 or better from Moody’s.
“ Availability Period ” means the period from and including the Restatement Effective Date to but excluding the earlier of the Maturity Date and the date of termination of the Commitments.
“ Battle Mountain Gold ” means Battle Mountain Gold Company, a Nevada corporation and a wholly owned subsidiary of the Company.
“ Board ” means the Board of  Governors of the Federal Reserve System of the United States of America.
“ Borrowers ” 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 a 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.
“ 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
 
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Exchange Act), of shares representing more than 50% of the aggregate ordinary voting power represented by the issued and outstanding capital stock of the Company, (b) the occupation of a majority of the seats (other than vacant seats) on the board of directors of the Company by Persons who were neither (i) nominated by the board of directors of the Company nor (ii) appointed by directors so nominated or (c) the Company 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 (a) the adoption of any law, rule or regulation after the date of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the date of this Agreement or (c) compliance by any Lender or any Issuing Bank (or, for purposes of Section 2.15(b), by any lending office of such Lender or such Issuing Bank or by such Lender’s or such Issuing Bank’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement.
“ 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 from time to time.
“ 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 participation 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 10.04. The initial amount of each Lender’s Commitment on or after the Restatement Effective Date 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 $2,000,000,000.
“ Commodity Hedging Agreement ” means any commodity price protection agreement or other commodity price hedging agreement to which any Borrower or any Significant Subsidiary is a party, but, in any event, shall not include any agreement for
 
5

the sale in the ordinary course of business and on standard trade terms of any commodity produced (i) from properties or (ii) by other interests owned by the Borrowers or their Subsidiaries.
“ Company ” has the meaning ascribed such term in the preamble to this Agreement.
“ 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 any 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.
“ 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 Company in good faith.
“ 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.
 
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“ 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.
“ Disclosed Matters ” means the actions, suits and proceedings and the environmental matters disclosed in Schedule 3.06 or in the Form 10-K of the Company, in respect of its fiscal year ended December 31, 2006.
“ dollars ” or “ $ ” refers to lawful money of the United States of America.
“ Effective Date ” means the date on which the Original Agreement became effective, which was July 30, 2004.
“ 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 Company 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 Company, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 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) the existence with respect to any US Plan of an “accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), 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(d) of the Code or Section 303(d) 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);
 
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(d) the incurrence by the Company 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 Company 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 Company 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 Company 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).
“ Eurocurrency Reserve Requirements ” means, with respect to Eurodollar Loans, the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board and any other banking authority to which the Administrative Agent is subject and applicable to “Eurocurrency Liabilities”, as such term is defined in Regulation D of the Board, or any similar category of assets or liabilities relating to eurocurrency fundings. Eurocurrency Reserve Requirements shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.
“ 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 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 the Administrative Agent, any Lender, any Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of any Borrower hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by the United States of America, 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, (b) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (a) above, (c) in the case of a Lender (other than an assignee pursuant to a request by the Company under Section 2.19(b)) or any Issuing Bank, any withholding tax imposed by the United States of America that is in effect and would apply to amounts payable by the applicable Borrower to such Lender or Issuing Bank at the time such Lender or Issuing Bank becomes a party to this Agreement (or designates a new lending office) and (d) any withholding tax that is attributable to such
 
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Lender’s failure to comply with Section 2.17(e), except, in the case of clause (c) above, to the extent that any applicable 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 any Borrower with respect to any withholding tax pursuant to Section 2.17.
“ Existing Letters of Credit ” means each letter of credit issued or deemed to have been issued under the Original Agreement that is outstanding on the Restatement Effective Date and is listed on Schedule 2.06. Unless a letter of credit issued or deemed to have been issued under the Original Agreement is listed on Schedule 2.06 it will not be a Letter of Credit under this Agreement.
“ Federal Funds Effective Rate ” means, for any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) 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%) 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 Officer ” means the chief financial officer, principal accounting officer, treasurer, assistant treasurer or controller of the Company.
“ 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.
“ Foreign Lender ” means any Lender that is organized under the laws of a jurisdiction other than the United States of America.
“ 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.
“ Guarantee Agreement ” means the amendment and restatement dated as of April 24, 2007, in respect of the Guarantee Agreement dated as of July 30, 2004, as amended and restated as of July 28, 2005, made by Battle Mountain Gold and Newmont Capital in favor of the Administrative Agent for the benefit of the Lenders in the form of Exhibit E.
 
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“ Guarantor ” and “ Guarantors ” means each of the Borrowers (as to the Obligations incurred by the other Borrower) and each of Battle Mountain Gold and Newmont Capital.
“ 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.
“ Indemnified Taxes ” means Taxes other than Excluded Taxes.
“ Index Debt ” means senior, unsecured, long-term indebtedness for borrowed money of the Company that is not guaranteed by any other Person (other than unsecured guarantees by a Guarantor) or subject to any other credit enhancement.
“ Information Memorandum ” means the Confidential Information Memorandum dated March 2007 relating to the Company and the Transactions.
“ Interest Election Request ” means a request by a 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
 
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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 a 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.
“ Issuing Bank ” means (a) JPMorgan and any one or more Lenders designated in writing by the Company in a notice delivered to the Administrative Agent, as the case may be, and their successors in such capacity; provided that such designated Lender or Lenders shall have consented to such designation and (b) in the case of each Existing Letter of Credit, the issuer thereof (which issuer is not required to be a Lender). 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.
“ JPMorgan ” means JPMorgan Chase Bank, N.A. and its successors.
“ LC Availability Period ” means the period from and including the Restatement Effective Date to but excluding the earlier of the Maturity Date and the date of the termination of the Commitments.
 
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“ 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 applicable 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.
“ 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.
“ 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, the Subordination Agreement and each promissory note delivered pursuant to this Agreement.
“ Loans ” means the loans made by the Lenders to the Borrowers pursuant to this Agreement.
 
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“ Margin ” means, with respect to any Competitive Loan bearing interest at a rate based on the LIBO Rate, the marginal rate of interest, if any, to be added to or subtracted from the 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 Company and its Subsidiaries taken as a whole.
“ Material Commodity Hedging Indebtedness ” means obligations under any Commodity Hedging Agreement with respect to which any Borrower or any Significant Subsidiary is obligated to pay more than $75,000,000 (after giving effect to any netting provisions of such agreement and subtracting the value of any cash (or cash equivalent) collateral provided by any Borrower or any Significant Subsidiary under such agreement) as a result of an event of default by, or termination event applicable solely to, any Borrower or any Significant Subsidiary.
“ Material Indebtedness ” means Indebtedness (other than the Loans) of any one or more of the Company, Newmont USA and the Significant Subsidiaries in an aggregate principal amount exceeding $75,000,000.
Maturity Date means April 24, 2012, or such later date as may apply from time to time pursuant to Section 2.09(e).
“ 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 Company or an ERISA Affiliate contributes or is obligated to contribute any amounts and (ii) to which any entity other than the Company and its ERISA Affiliates contributes or is obligated to contribute any amounts.
“ Newmont Capital ” means Newmont Capital Limited, a Nevada corporation and a wholly owned subsidiary of the Company.
“ 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 Company 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.
“ 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
 
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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 Company or Newmont USA under this Agreement or any other Loan Document.
“ Original Agreement ” means this Agreement, as amended and in effect immediately prior to the Restatement Effective Date.
“ Other Taxes ” means any and all present or future recording, stamp, documentary, excise, transfer, or similar taxes, charges or levies arising from any payment made under any Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, any Loan Document.
“ PBGC ” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
“ 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 Company or any Subsidiary;
 
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(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 Company 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 (x) 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 (y) provided for in Section 10.08 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 Company 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 Company 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.
“ Plan ” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA (or which would be subject to the provisions of Title IV of ERISA but for the application of Section 4(b)(4)
 
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of ERISA) or Section 412 of the Code or Section 302 of ERISA (or which would be subject to the provisions of Section 302 of ERISA but for the application of Section 4(b)(4) of ERISA), and in respect of which the Company or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“ 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.
“ Register ” has the meaning set forth in Section 10.04(c).
“ Related Parties ” means, with respect to any Specified 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 Revolving Credit Exposures (plus Competitive Loan Exposures) representing at least a majority of the total Revolving Credit Exposures (plus Competitive Loan Exposures) at such time.
“ Restatement Effective Date ” means the date on which the conditions specified in Section 4.01 are satisfied (or waived pursuant to Section 10.02).
“ 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 (i) any Subsidiary now or at any time hereafter meeting any one of the following conditions: (a) the assets of such Subsidiary exceed 10% of the aggregate assets appearing on the consolidated balance sheet of the Company and its consolidated Subsidiaries for the most recently ended fiscal year, or (b) the gross revenues of such Subsidiary for the fiscal year of the Company most
 
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recently ended exceed 10% of the gross revenues of the Company and its consolidated Subsidiaries for such fiscal year, or (c) 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 (a) or (b) of this definition, and (ii) Newmont USA, Battle Mountain Gold and Newmont Capital.
“ Statutory Reserve Requirements ” means, with respect to any currency, reserve (including any Eurocurrency Reserve Requirements), liquid asset or similar requirements established by any Governmental Authority of the United States of America or of the jurisdiction of such currency or any jurisdiction in which Loans in such currency are made to which banks in such jurisdiction are subject for any category of deposits or liabilities customarily used to fund loans in such currency or by reference to which interest rates applicable to Loans in such currency are determined.
“ Subordination Agreement ” means the amendment and restatement dated as of April 24, 2007, in respect of the Subordination Agreement dated as of July 30, 2004, as amended and restated as of July 28, 2005, among the subordinated lenders set forth in Schedule I thereto, the Guarantors set forth in Schedule II thereto and the Administrative Agent for the benefit of the Lenders in the form set forth in Exhibit F or any similar instrument reasonably satisfactory to the Administrative Agent and the Company on terms no less favorable to the Lenders than those set forth in Exhibit F.
“ 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 Company.
“ 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 $100,000,000.
“ 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.
 
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“ Swingline Loan ” means a Loan made by the Swingline Lender under its Swingline Commitment pursuant to Section 2.05.
“ Taxes ” means any and all present or future taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any Governmental Authority.
“ Total Capitalization ” means, on any date, the sum of (x) all Indebtedness that would appear as a liability on a consolidated balance sheet of the Company and its Subsidiaries prepared as of such date in accordance with GAAP, less the aggregate amount of all cash, cash equivalents and Auction Rate Securities of the Company and its Subsidiaries that would appear on such balance sheet (or, in the case of such Auction Rate Securities, in a footnote thereto) and (y) total stockholders’ equity of the Company and its Subsidiaries determined as of such date on a consolidated basis in accordance with GAAP, less goodwill and intangible assets of the Company 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 Company and its Subsidiaries on such date, less the aggregate amount of all cash, cash equivalents and Auction Rate Securities of the Company and its Subsidiaries on such date, in each case as would appear as a liability or as cash, cash equivalents or Auction Rate Securities, as applicable, on a consolidated balance sheet of the Company and its Subsidiaries (or, in the case of such Auction Rate Securities, in a footnote thereto) prepared as of such date in accordance with GAAP.
“ Transactions ” means the execution, delivery and performance by the Borrowers and Guarantors of this Agreement and the other Loan Documents, the borrowing of Loans hereunder, the use of the proceeds thereof and the issuance of Letters of Credit hereunder.
“ 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 LIBO Rate, the Alternate Base Rate or, in the case of a Competitive Loan or Borrowing, the LIBO Rate or a Fixed Rate.
“ US Multiemployer Plan ” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
“ US Plan ” means a Plan that is subject to ERISA.
“ 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.
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”).
 
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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, (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 and (f) references to “the date hereof” or “the date of this Agreement” shall refer to the Restatement Effective Date. References herein to the taking of any action hereunder of an administrative nature by any Borrower shall be deemed to include references to the Company taking such action on such Borrower’s behalf, and the Administrative Agent is expressly authorized to accept any such action taken by the Company as having the same effect as if taken by such Borrower. Any notice given to the Company shall be deemed to have been given simultaneously to Newmont USA.
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, if the Company notifies the Administrative Agent that the Company requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Restatement Effective Date in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Company 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 Borrowers 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 total Revolving Credit Exposures plus the total Competitive Loan Exposures exceeding the total Commitments.
(b) Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers 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 applicable 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 applicable 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 30 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, no Borrower shall 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 applicable 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 Company and signed by the applicable Borrower (or by the Company on behalf of Newmont USA, if it is the Borrower). Each such telephonic and written Borrowing Request shall specify the following information in compliance with Section 2.02:
(i) the Borrower requesting such Borrowing (or on whose behalf the Company is requesting such Borrowing);
(ii) the aggregate amount of the requested Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) the Type of the requested Borrowing;
(v) 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
(vi) the location and number of the relevant 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 applicable 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.
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 Borrowers 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 total
 
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Revolving Credit Exposures plus the total Competitive Loans shall not exceed the total Commitments. To request Competitive Bids, the applicable 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 applicable 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 applicable 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 relevant 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 applicable 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
 
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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 Company) 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.
(c) The Administrative Agent shall promptly notify the applicable 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, a Borrower may accept or reject any Competitive Bid. A 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 a Borrower to give such notice shall be deemed to be a rejection of each Competitive Bid, (ii) a Borrower shall not accept a Competitive Bid made at a particular Competitive Bid Rate if such Borrower rejects a Competitive Bid made at a lower Competitive Bid Rate, (iii) the aggregate amount of the Competitive Bids accepted by a 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, a 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 applicable Borrower. A notice given by a 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.
 
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(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 applicable 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 Borrowers, 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 total Revolving Credit Exposures plus the total Competitive Loan Exposures exceeding the total Commitments; provided that (A) the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan and (B) the Swingline Lender shall not make a Swingline Loan 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 Swingline Loans shall be made by it (a “ Swingline Suspension Notice ”). 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 Borrowers 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, a 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 aggregate amount of the requested Swingline Borrowing. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from a Borrower. The Swingline Lender shall make each Swingline Loan available to the applicable Borrower by means of a transfer of funds to the general deposit account of the applicable 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 the absence of a
 
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Swingline Suspension Notice received by the Swingline Lender not less than two Business Days prior to the making of the applicable Swingline Loan, 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 applicable Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph. Any amounts received by the Swingline Lender from the applicable Borrower (or other party on behalf of such 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. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve any 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, either Borrower may request the issuance of Letters of Credit for its own account, 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. 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 by either Borrower to, or entered into by either Borrower with, any Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control. On the Restatement Effective Date, each Issuing Bank that has issued an Existing Letter of Credit shall be deemed, without further action by any party hereto, to have granted to each Lender and each Lender shall have been deemed to have purchased from such Issuing Bank a participation in such Letter of Credit in accordance with paragraph (d) below. The Company, each Issuing Bank and the Lenders that are also party to the Original Agreement agree that concurrently with such grant, the participations in the Existing Letters of Credit granted to such lenders under the Original Agreement shall be automatically canceled without further action by any of the parties thereto. On and after the Restatement Effective Date, each Existing Letter of Credit shall constitute a Letter of Credit for all purposes hereof and shall be deemed issued on the Restatement Effective Date.
(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 applicable Borrower shall hand deliver or telecopy (or transmit by electronic communication, if arrangements for doing so have
 
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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 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, such 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 applicable 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 $500,000,000 and (ii) the sum of the total Revolving Credit Exposures shall not exceed the total Commitments; 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 ”).
(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.
(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 applicable Borrower on the date due as provided in paragraph (e) of this Section, or of any reimbursement payment required to be refunded to the applicable 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. Each Lender shall be deemed to have acquired such a participation in each Existing Letter of Credit on the Restatement Effective Date.
 
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(e) Reimbursement. If any Issuing Bank shall make any LC Disbursement in respect of a Letter of Credit, the applicable 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 such Borrower shall have received notice of such LC Disbursement; provided that either 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, such 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 a 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 such 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 such 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 a 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 either Borrower of its obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. Each 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, such 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
 
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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 to either Borrower to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by each Borrower to the extent permitted by applicable law) suffered by such 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 applicable 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 such 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 applicable 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 such Borrower reimburses such LC Disbursement, at the rate per annum then applicable to ABR Loans; provided that, if the applicable 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.
(i) Replacement of the Issuing Bank. An Issuing Bank may be replaced at any time by written agreement among the applicable Borrower, the Administrative Agent, the replaced Issuing Bank and the successor Issuing Bank. The Administrative Agent shall notify the Lenders of any such replacement of an Issuing Bank. At the time any such replacement shall become effective, the applicable Borrower shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to
 
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Section 2.12(c). From and after the effective date of any such replacement, the successor Issuing Bank shall have all the rights and obligations of the applicable replaced Issuing Bank under this Agreement with respect to Letters of Credit to be issued thereafter. After the replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such replacement, but shall not be required to issue additional Letters of Credit.
(i) Acceleration of Reimbursement Obligations. If at any time (i) an Event of Default described in clause (a), (b) (only to the extent related to an LC Disbursement reimbursement obligation), (h) or (i) of Article VII shall occur and be continuing or (ii) the Administrative Agent shall declare the Loans to be immediately due and payable (in whole or in part), the reimbursement obligations of the Borrowers hereunder in respect of all Letters of Credit then outstanding shall (x) in the case of the occurrence and the continuance of any Event of Default described in clause (a) or (b) (in the case of clause (b), only to the extent related to an LC Disbursement reimbursement obligation) of Article VII upon the request of the Administrative Agent and (y) in all other cases, immediately, become due and payable (regardless of whether such Letters of Credit shall have been drawn upon as of such time). The applicable Borrower shall make such reimbursement in an amount in cash equal to the aggregate LC Exposure with respect to such Borrower as of such date plus any accrued and unpaid interest thereon. Moneys comprising such reimbursement shall be applied by the Administrative Agent to reimburse any Issuing Bank for LC Disbursements made in connection with Letters of Credit issued pursuant to a request made by the applicable Borrower and for which such Issuing Bank has not been reimbursed and, to the extent not so applied, shall be held on behalf of the applicable Issuing Bank in satisfaction of the reimbursement obligations of the applicable Borrower, as applicable, for the LC Exposure with respect to such Borrower at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of the Required Lenders), be applied to satisfy other obligations of such Borrower under this Agreement. If either Borrower is required to provide a reimbursement 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 such Borrower within three Business Days after all Events of Default have been cured or waived. Upon (x) the expiration or termination of any Letter of Credit for which the applicable Borrower shall have previously provided reimbursement hereunder or (y) the waiver or cure of the Event of Default that gave rise to the reimbursement obligation under this Section 2.06(j), the Administrative Agent, on behalf of the applicable Issuing Bank with respect to such Letter of Credit, shall reimburse the applicable Borrower within three Business Days for any undrawn amounts (to the extent not applied as aforesaid) under such Letter of Credit.
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 applicable Borrower by promptly crediting the amounts so received to an account of such Borrower
 
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maintained with the Administrative Agent in New York City and designated by such 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 applicable 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 applicable Borrower severally agrees 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 applicable Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of (x) the Federal Funds Effective Rate and (y) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation or (ii) in the case of a 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.
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 applicable 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 applicable 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, a Borrower (or the Company on its behalf) 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 such 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
 
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signed by the applicable Borrower (or the Company on its behalf). Notwithstanding any other provision of this Section, no Borrower shall 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 applicable Borrower shall be deemed to have selected an Interest Period of one month’s duration.
(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 a 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 request of the Required Lenders, so notifies the Company (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, Reduction and Extension of Commitments; Increase of Commitments .
(a) Unless previously terminated, the Commitments shall terminate on the Maturity Date.
 
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(b) The Company may at any time terminate, or from time to time 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 Company 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 total Revolving Credit Exposures plus the total Competitive Loan Exposures would exceed the total Commitments.
(c) The Company 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 Company pursuant to this Section shall be irrevocable; provided that a notice of termination of the Commitments delivered by the Company may state that such notice is conditioned upon the effectiveness of other credit facilities, in which case such notice may be revoked by the Company (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.
(d)(i) The Company 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 Company (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 Borrowers 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.
 
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(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 10.04 or (C) by any combination of the foregoing. Notwithstanding the foregoing, in order to eliminate any break funding liability to the Borrowers, 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 a 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 prepaid by the applicable Borrowers (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 applicable Borrowers to the Revolving 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 on a pro rata basis, based on the Commitments as then in effect).
(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), (b) and, if applicable, (c) 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.
(e)(i) The Company may, by notice to the Administrative Agent (which shall promptly deliver a copy to each of the Lenders) given not less than 30 days and not more than 45 days prior to any anniversary of the Restatement Effective Date occurring on or before the Maturity Date then in effect, request that the Lenders extend the Maturity Date then in effect for an additional period of one year; provided that the Maturity Date may not be extended beyond April 24, 2014. Any such notice shall specify any fees that the Borrowers agree to pay as consideration for such extension. Each Lender shall, by notice to the Company and the Administrative Agent given within 30 days after such Lender’s receipt of any such request, advise the Company whether or not it agrees to such extension. Any Lender that has not so advised the Administrative Agent by such day shall be deemed to have declined to agree to such extension.
(ii) If the Company shall have requested and the Required Lenders shall have agreed to an extension of the Maturity Date, then the Maturity Date shall be extended for the additional period specified in the Borrower’s notice provided for under sub-paragraph (i) above.
 
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(iii) The decision to agree or withhold agreement to any extension of the Maturity Date hereunder shall be at the sole discretion of each Lender. The Commitment of any Lender that has declined to agree to any requested extension of the Maturity Date (a “ Non-Extending Lender ”) shall terminate on the Maturity Date in effect prior to giving effect to any such extension (the “ Existing Maturity Date ”), and the principal amount of any outstanding Loans made by such Lender, together with any accrued interest thereon, and any accrued fees and other amounts payable hereunder and owing to such Lender shall be due and payable on the Existing Maturity Date. Notwithstanding the foregoing, pursuant to Section 2.19(b), the Company shall have the right to replace a Non-Extending Lender with a Lender or other financial institution that will assume the Commitment of such Non-Extending Lender and agree to an extension of the Maturity Date.
SECTION 2.10. Repayment of Loans; Evidence of Debt . (a)Each 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 such 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 (x) the Maturity Date and (y) 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 any Borrower, such 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 each 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 applicable 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 any Borrower to repay the Loans in accordance with the terms of this Agreement.
 
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(e) Any Lender may request that Loans made by it be evidenced by a promissory note. In such event, the applicable Borrower or Borrowers shall prepare, execute and deliver to such Lender a promissory note payable to the order of such Lender (or, if requested by such Lender, to such Lender and its registered assigns) and in a form approved by the Company 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 10.04) 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).
SECTION 2.11. Prepayment of Loans . (a)The Borrowers 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 a 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 total Revolving Credit Exposures plus the total Competitive Loan Exposures exceeds the total Commitments, the Borrowers 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 2.05(j) to be held as security for the Borrowers’ 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 Borrowers.
(c) Prior to any optional or mandatory prepayment of Borrowings, the applicable 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 applicable 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.
 
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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.
SECTION 2.12. Fees . (a)The Company agrees to pay to the Administrative Agent, for the account of each Lender a facility fee, which shall accrue at the relevant Facility Fee Rate specified in the definition of Applicable Rate on the daily amount of the Commitments of such Lender (whether used or unused) during the period from and including the Restatement Effective Date 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 Restatement Effective Date; 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 Company agrees to pay to the Administrative Agent, for the account of each Lender a utilization fee at a rate per annum equal to 0.050% on the amount of the Revolving Credit Exposure on and in respect of each day on which the amount of Revolving Credit Exposure is greater than 50% of the total Commitments. Accrued utilization fees, if any, 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. All utilization 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).
(c) Each 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 issued on behalf of such Borrower, which shall accrue at the same Applicable Rate used from time to time to determine the interest rate applicable to Eurodollar Revolving Loans on the average daily amount of such Lender’s applicable LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the Restatement 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, (A) which shall accrue at a rate per annum as may be separately agreed upon by the applicable
 
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Borrower and such Issuing Bank on the daily amount of the LC Exposure attributable to standby Letters of Credit issued by such Issuing Bank (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the Restatement 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, and (B) in the amount as may be separately agreed upon by the applicable Borrower and such Issuing Bank on the face amount of each documentary Letter of Credit issued by such Issuing Bank, payable in full on the date of issuance as well as, in each case, 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 under clause (ii)(A) of the preceding sentence 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 Restatement 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 standby 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).
(d) The Borrowers agree to pay to the Administrative Agent, for its own account, fees payable in the amounts and at the times separately agreed upon between any Borrower and the Administrative Agent.
(e) 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, utilization 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.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest (i) in the case of a Eurodollar Revolving Borrowing, at the 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 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 any 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
 
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case of overdue principal of any Loan, 2% 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% 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 LIBO Rate shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.
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 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 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 Company and the Lenders by telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent notifies the Company 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 a 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 a Borrower for Eurodollar Competitive
 
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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 or any change in the applicability after the Restatement Effective Date of any Statutory Reserve Requirements shall:
(i) impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender (except for Eurocurrency Reserve Requirements) or any Issuing Bank; or
(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;
and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Eurodollar Loan or Fixed Rate Loan or to increase the cost to such Lender or any Issuing Bank of participating in, issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank hereunder (whether of principal, interest or otherwise), then the applicable 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, as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender shall give notice to the Administrative Agent and the Company at any time to the effect that Eurocurrency Reserve Requirements are, or are scheduled to become, effective and that such Lender is or will be generally subject to such Eurocurrency Reserve Requirements as a result of which such Lender will incur additional costs, then such Lender shall, for each day from the later of the date of such notice and the date on which such Eurocurrency Reserve Requirements become effective, be entitled to additional interest on each Eurodollar Loan made by it at a rate per annum determined for such day (rounded upward, if necessary, to the nearest 1/100 of 1%) equal to the remainder obtained by subtracting (i) the LIBO Rate for such Eurodollar Loan from (ii) the rate obtained by dividing such LIBO Rate by a percentage equal to 100% minus the then-applicable Eurocurrency Reserve Requirements. Such additional interest will be payable in arrears to the Administrative Agent, for the account of such Lender, on each Interest Payment Date relating to such Eurodollar Loan and on any other date when interest is required to be paid hereunder with respect to such Loan. Any Lender which gives a notice under this paragraph (b) shall promptly withdraw such notice (by written notice of withdrawal given to the Administrative Agent and the Company) in the event Eurocurrency Reserve Requirements cease to apply to it or the circumstances giving rise to such notice otherwise cease to exist.
 
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(c) 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 Company 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.
(d) 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 (c) of this Section, shall be delivered to the Company and shall be conclusive absent manifest error. The Company shall pay such Lender or such Issuing Bank the amount shown as due on any such certificate within 10 Business Days after receipt thereof.
(e) 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 Company shall not be required to compensate a Lender or any Issuing Bank pursuant to paragraph (a) or (c) 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 Company of the Change in Law (or change in the applicability of Statutory Reserve Requirements) 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 (or change in the applicability of Statutory Reserve Requirements) 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.
(f) 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)
 
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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 Company pursuant to Section 2.19, then, in any such event, the applicable 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 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 Company and shall be conclusive absent manifest error. The applicable 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 Borrowers 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 Borrowers 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)Any and all payments by or on account of any obligation of the Borrowers hereunder or under any other Loan Document shall be made free and clear of and without deduction for any Indemnified Taxes or Other Taxes; provided that if any Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable shall be increased as necessary so that after making all required deductions of Indemnified Taxes or Other Taxes (including deductions applicable to additional sums payable under this Section) the Administrative Agent, Issuing Bank or Lender (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii) such Borrower shall make such deductions and (iii) such Borrower shall pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrowers shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.
(c) The applicable Borrower shall indemnify the Administrative Agent, each Issuing Bank and each Lender, within 10 days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent, such Issuing Bank or such Lender, as the case may be, on or with respect to any payment by or on account of any obligation of such Borrower hereunder or under any other Loan Document (including Indemnified Taxes or Other Taxes imposed or asserted on or
 
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attributable to amounts payable under this Section) and any penalties, interest and reasonable expenses arising therefrom or with respect thereto; provided that the Borrowers shall not be required to indemnify the Administrative Agent, an Issuing Bank or a Lender pursuant to this paragraph for any such Indemnified Taxes or Other Taxes and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, paid by the Administrative Agent, such Issuing Bank or such Lender more than 180 days prior to the date that the Administrative Agent, such Issuing Bank or such Lender notifies the applicable Borrower of such payment by the Administrative Agent, such Issuing Bank or such Lender of such Indemnified Taxes or Other Taxes and such related payments and of the Administrative Agent’s, such Issuing Bank’s or such Lender’s intention to claim indemnification therefor. A certificate as to the amount and nature of such payment or liability delivered to the Company by a Lender, by an Issuing Bank or by the Administrative Agent on its own behalf or on behalf of a Lender or an Issuing Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by a Borrower to a Governmental Authority, the Company 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.
(e) On or before the date it becomes a party to this Agreement, each Lender that is not a United States Person as defined in Section 7701(a)(30) of the Code (a “ Non-US Lender ”) shall deliver to the Company two executed and completed copies of United States Internal Revenue Service Form (i) W-8ECI (or any successor form) specifying that all payments to be received under this Agreement or any other Loan Document by such Non-US Lender will be effectively connected with the conduct of a trade or business in the US, (ii) W-8BEN, including such Lender’s Taxpayer Identification Number (of any successor form) certifying eligibility for complete exemption from US Federal withholding tax with respect to payments to be made under this Agreement or under any other Loan Document under an applicable tax treaty or (iii) W-8BEN (or any successor form) and a certificate substantially in the form of Exhibit D (a “ Non-Bank Certificate ”). Each Non-US Lender shall redeliver such forms promptly upon the obsolescence or invalidity of any form previously delivered by such Non-US Lender, except to the extent that such Non-US lender is unable to redeliver such forms due to the adoption of, or change in, any law, rule, treaty or regulation or in the interpretation or application thereof by any Governmental Authority after the date on which the applicable Loan is made by such Non-US Lender.
(f) If a Lender or Issuing Bank (or the Administrative Agent on behalf of a Lender or Issuing Bank) receives a refund in respect of any Indemnified Taxes pursuant to this Section 2.17, it shall within 30 days from the date of such receipt pay over such refund to the relevant Borrower (but only to the extent of indemnity payments made by the relevant Borrower under this Section 2.17 with respect to the Indemnified Taxes giving rise to such refund), net of all out-of-pocket expenses of such Lender or Issuing Bank (or the Administrative Agent) and without interest (other than interest paid by the
 
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relevant Governmental Authority with respect to such refund); provided , however , that the relevant Borrower, upon the request of such Lender or such Issuing Bank (or the Administrative Agent), agrees to repay the amount paid over to the relevant Borrower (plus penalties, interest or other charges) to such Lender or such Issuing Bank (or the Administrative Agent) in the event such Lender or such Issuing Bank (or the Administrative Agent) is required to repay such refund to the relevant Governmental Authority.
(g) Notwithstanding anything to the contrary contained in this Section 2.17, if a Lender or Issuing Bank is a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(l) of the Code and the Treasury Regulations issued thereunder) with respect to any payments made by the Borrowers under this Agreement or under any other Loan Document, the Borrowers shall not be obligated to pay additional amounts to such Lender or Issuing Bank pursuant to this Section 2.17 to the extent that the amount of Indemnified Taxes exceeds the amount that would have otherwise been payable had such Lender or Issuing Bank not been a conduit entity participating in a conduit financing arrangement.
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs . (a)Except as otherwise provided in Section 2.06(e), each 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 Company, 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 10.03 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.
(b) If at any time insufficient funds are received by and available to the Administrative Agent from any Borrower to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due from such Borrower
 
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hereunder, such funds shall be applied (i)  first , towards payment of interest and fees then due from such 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 such 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 any 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 a Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). Each 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 such 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 such Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Company 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 applicable Borrower will not make such payment, the Administrative Agent may assume that such 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 such 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.
 
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(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 any 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). Each 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 any Lender (including any Issuing Bank) requests compensation under Section 2.15 (other than paragraph (b) thereof), or if any 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, or if any Lender shall not agree to a requested extension of the Maturity Date pursuant to Section 2.09(e), or if any Lender defaults in its obligation to fund Loans hereunder, then the Company 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 10.04), 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 assignment); provided that (i) the Company 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, (ii) 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 Company (in the case of all other amounts) and (iii) 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 in such compensation, payments or additional interest.
 
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ARTICLE III
Representations and Warranties
Each Borrower represents and warrants (as to itself and its own Subsidiaries) to the Lenders that:
SECTION 3.01. Organization; Powers . Each 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 each Borrower’s and 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 each Borrower and constitutes, and each other Loan Document to which any Guarantor is to be a party, when executed and delivered by such Guarantor, will constitute, a legal, valid and binding obligation of such Borrower or other 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 any 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 any Borrower or any of the Subsidiaries or its assets, or give rise to a right thereunder to require any payment to be made by any Borrower or any of the Subsidiaries, and (d) will not result in the creation or imposition of any Lien on any asset of any Borrower or any of the Subsidiaries.
SECTION 3.04. Financial Condition; No Material Adverse Change . (a)The Company has heretofore furnished to the Lenders the consolidated balance sheet and statements of income, stockholders’ equity and cash flows of the Company and its consolidated Subsidiaries as of and for the fiscal year ended December 31, 2006, reported on by PricewaterhouseCoopers LLP, independent registered public accounting firm.
 
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Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Company and its consolidated Subsidiaries as of such date and for such period in accordance with GAAP.
(b) Since December 31, 2006, there has been no material adverse change in the business, assets, operations or financial condition of the Company and its Subsidiaries, taken as a whole.
SECTION 3.05. Properties . (a)Each Borrower and each Significant Subsidiary has good title to, or valid leasehold interests in, all its real and personal property material to its business, 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) Each Borrower and each Significant Subsidiary owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual property material to its business, and the use thereof by such Borrower or 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 any Borrower, threatened against or affecting such 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, no 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 . Each 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 Borrower nor any other 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 . Each Borrower and each Subsidiary has timely filed or caused to be filed all Tax returns and reports required to have been filed and has paid or caused to be paid all Taxes required to have been paid by it, except (a) Taxes that are being contested in good faith by appropriate proceedings and for which the Company or such Subsidiary, as applicable, has set aside on its books adequate reserves or (b) to the extent that the failure to do so could not reasonably be expected to result in 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 Statement of Financial Accounting Standards No. 87) 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 Statement of Financial Accounting Standards No. 87) 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 Restatement Effective Date, neither the Information Memorandum nor any of the other reports, financial statements, certificates or other information furnished by or on behalf of any 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 Restatement 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, each 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 Company, or of the Company 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 Company, or of the Company 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 any Borrower, such representation shall not be required to be made, provided that the Borrowers shall at all times thereafter comply with Article XI.
 
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SECTION 3.13. Subsidiaries . Schedule 3.13 sets forth as of the Restatement Effective Date a list of all Subsidiaries and the percentage ownership (directly or indirectly) of the Company 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 Company, 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, (i).
ARTICLE IV
Conditions
SECTION 4.01. Restatement Effective Date . The amendment and restatement of the Original Agreement in the form hereof and 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 10.02):
(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) Each Guarantor that has not executed and delivered this Agreement shall have entered into a written instrument reasonably satisfactory to the Administrative Agent pursuant to which it confirms that it consents to the amendment and restatement of the Original Agreement effected hereby, and that the Loan Documents to which it is party will continue to apply in respect of this Agreement and the Obligations.
(c) The Guarantee Agreement shall have been duly executed and delivered to the Administrative Agent by Battle Mountain Gold and Newmont Capital.
(d) The Administrative Agent shall have received favorable written opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of Blake M. Rhodes, Vice President and Chief Counsel of the Company and White & Case LLP, special counsel for the Company, substantially in the forms of Exhibits B-1 and B-2, respectively. The Company hereby requests such counsel to deliver such opinions.
(e) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to
 
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the organization, existence and good standing of the Borrowers and the other Guarantors and the authorization of the Transactions by the Borrowers and the other Guarantors, all in form and substance reasonably satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by the President, a Vice President or a Financial Officer of the Company, confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02.
(g) On the Restatement Effective Date, (i) the Borrowers shall repay all loans outstanding under the Original Agreement and pay all accrued and unpaid interest and any amounts payable pursuant to Section 2.16 of the Original Agreement in respect thereof and (ii) no Letters of Credit (other than the Existing Letters of Credit) shall be outstanding under the Original Agreement.
(h) The Administrative Agent shall have received (i) all facility fees and utilization fees accrued under the Original Agreement through the day immediately preceding the Restatement Effective Date and (ii) all other fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses (including fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder (including under the Original Agreement) or under any other Loan Document.
The Administrative Agent shall notify the Borrowers and the Lenders of the Restatement 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 10.02) at or prior to 3:00 p.m., New York City time, on April 28, 2007 (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time). It is understood and agreed that no term of the amendment and restatement contemplated hereby shall be effective until the Restatement Effective Date occurs, and that the Original Agreement shall continue in full force and effect without regard to the amendment and restatement contemplated hereby until the Restatement Effective Date.
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 effect an extension, or increase the stated face amount, of such Letter of Credit) is subject to the satisfaction (or waiver in accordance with Section 10.02) of the following conditions:
(a) The representations and warranties of each Borrower set forth in this Agreement shall (other than the representations and warranties set forth in
 
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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 effect an extension, or 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, each 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 such 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 effect an extension, or increase the stated face amount, of such Letter of Credit) shall be deemed to constitute a representation and warranty by each Borrower on the date thereof as to the matters specified in paragraphs (a) and (b) of this Section.
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, each Borrower covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information . The Company will furnish to the Administrative Agent for distribution to each Lender:
(a) within 100 days after the end of each fiscal year of the Company, 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
 
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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 Company 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 Company’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 Company, 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 Company 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 Company’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 and (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;
(d) concurrently with any delivery of financial statements under clause (a) above, a certificate of the accounting firm that reported on such financial statements 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 Company or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Lender may reasonably request.
SECTION 5.02. Notices of Material Events . The Company will furnish to the Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default;
 
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(b) the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against or affecting a 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 Company 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) Each 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) each 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 Company and its Subsidiaries taken as a whole; provided that the foregoing shall not prohibit any merger, consolidation, liquidation, dissolution or sale permitted (or not restricted) under Section 6.03.
SECTION 5.04. Payment of Obligations . Each 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, (b) such Borrower or such Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP and (c) the failure to make payment pending such contest could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.05. Maintenance of Properties; Insurance . Each 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 Company 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.
 
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SECTION 5.06. Books and Records; Inspection Rights . Each 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. Each 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 . Each 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 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 XI). Letters of Credit will be issued only to support obligations incurred by the Borrowers and their subsidiaries in their business operations.
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, each Borrower covenants and agrees with the Lenders that:
SECTION 6.01. Consolidated Indebtedness . The Borrowers will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness if Total Indebtedness would exceed at any one time an amount equal to 62.5% of Total Capitalization.
SECTION 6.02. Liens . The Company 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;
 
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(b) any Lien on any property or asset of the Company or any Subsidiary existing on the Restatement 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 Company or any Subsidiary and (ii) such Lien shall secure only those obligations which it secured on the Restatement Effective Date;
(c) any Lien existing on any property or asset prior to the acquisition thereof by the Company or any Subsidiary or existing on any property or asset of any Person that becomes a Subsidiary after the Restatement 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 Company 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 Company 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 Company or any Subsidiary;
(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 Company 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 Company and all of its Subsidiaries) $400,000,000 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) and (ii) 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 exceeds the commitments under the applicable bank credit facility; and
 
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(j) extensions, renewals 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 and that any such extension, renewal or replacement is limited to the property originally encumbered thereby.
SECTION 6.03. Fundamental Changes . Neither Borrower will merge into or consolidate with any other Person, or 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 Company or Newmont USA;
(b) the Company or Newmont USA may merge or consolidate with any other Person so long as:
(i) the Company or Newmont USA, as the case may be, is the surviving corporation or the surviving corporation (if the surviving corporation is not the Company) shall assume all of the Loans and other obligations of the Company or Newmont USA, as the case may be, under this Agreement pursuant to an Assumption Agreement substantially in the form of Exhibit C;
(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 Company or Newmont USA, as the case may be, 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; and
(iii) the surviving corporation in the case of any merger or consolidation involving Newmont USA shall be a wholly owned Subsidiary of the Company.
SECTION 6.04. Intercompany Indebtedness of Guarantors. The Borrowers will not, and will not permit any other Guarantor to create, incur, assume or permit to exist any Indebtedness or obligations in respect of intercompany advances owed to the Company or any other Subsidiary (other than (a) Indebtedness of Newmont Capital Limited existing on the Restatement Effective Date and set forth on Schedule 6.04 and
 
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(b) Indebtedness or obligations in respect of intercompany advances owed to any Subsidiary that is not a Guarantor in an aggregate principal amount not to exceed $75,000,000 for all such Indebtedness or obligations in respect of intercompany advances owed to any one Subsidiary) unless such Indebtedness or obligations in respect of intercompany advances is expressly subordinated to such Guarantor’s obligations under this Agreement and the Guarantee Agreement, as the case may be, on terms no less favorable to the Lenders than those set forth on Exhibit F hereto; provided that in the case of the incurrence of Indebtedness or obligations in respect of intercompany advances after the Restatement Effective Date that results in the aggregate principal amount of Indebtedness or obligations in respect of intercompany advances owed by the Guarantors to the Company or any one Subsidiary first exceeding $75,000,000, no Default or Event of Default shall arise hereunder until the date that is 35 days after such incurrence of Indebtedness or obligations in respect of intercompany advances due to the absence of such subordination of Indebtedness or obligations in respect of intercompany advances owed to the Company or such Subsidiary.
SECTION 6.05. Indebtedness of Certain Subsidiary Guarantors. The Company will not permit Newmont Capital Limited or Battle Mountain Gold Company to create, incur, assume or permit to exist any Indebtedness, other than (i) its guarantees under the Guarantee Agreement, (ii) unsecured guarantees by it of senior Indebtedness of the Company and/or Newmont USA, (iii) Indebtedness set forth for it on Schedule 6.04, (iv) Indebtedness owed to the Company or any other Subsidiary, provided that such Indebtedness is, to the extent required under Section 6.04, expressly subordinated to its obligations under the Guarantee Agreement on terms no less favorable to the Lenders than those set forth on Exhibit F hereto and (v) other Indebtedness in an aggregate principal amount not in excess of $100,000,000 at any time outstanding.
ARTICLE VII
Events of Default
If any of the following events (“ Events of Default ”) shall occur:
(a) either 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) either Borrower shall (i) fail to pay (1) any interest on any Loan, (2) any reimbursement obligation in respect of any LC Disbursement, or (3) 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 Company is notified thereof by the Administrative Agent or any Lender;
 
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(c) any representation or warranty made or deemed made by or on behalf of either Borrower or any Subsidiary 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;
(d) either Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.02, 5.03 (with respect to such Borrower’s existence) or 5.08 or in Article VI;
(e) either 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 Company (which notice will be given at the request of the Required Lenders);
(f) the Company 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 Company 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 Company 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) either 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,
 
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sequestrator, conservator or similar official for a 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;
(j) one or more judgments for the payment of money in an aggregate amount in excess of $75,000,000 (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 a 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 Company 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 a 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) a 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) such 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; or
(n) the Guarantee Agreement shall cease to be or shall not be enforceable with respect to any Guarantor or any Guarantor shall assert in writing that the Guarantee Agreement or any guarantee thereunder has ceased to be or is not enforceable;
then, and in every such event (other than an event with respect to a 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 Company, take either or both of the following actions, at the same or different times: (i) terminate the Commitments, and thereupon the Commitments shall
 
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terminate immediately, and (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 Borrowers accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by each Borrower; and in case of any event with respect to a Borrower described in clause (h) or (i) of this Article, the Commitments shall automatically terminate and the principal of the Loans and, together with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by each Borrower.
ARTICLE VIII
The Administrative Agent
In order to expedite the transactions contemplated by this Agreement, JPMorgan is hereby appointed to act as Administrative Agent on behalf of the Lenders and the Issuing Banks. Each of the Lenders and the Issuing Banks hereby irrevocably authorizes the Administrative Agent to take such actions on its behalf 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 Administrative Agent shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the any Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder.
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 exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), 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 any Borrower or any Subsidiary that is communicated to or obtained by the 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
 
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necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or wilful misconduct. The Administrative Agent shall not be deemed to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by a Borrower or a Lender, 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 any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the 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.
The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for any 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.
The Administrative Agent may perform any and all its duties and exercise its rights and powers 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 and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 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 facility provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, 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 resignation, then the retiring Administrative Agent may on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent 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 the 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. The
 
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fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After an Administrative Agent’s resignation hereunder, the provisions of this Article and Section 10.03 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.
Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender 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 also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender 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, any related agreement or any document furnished hereunder or thereunder.
ARTICLE IX
Guarantee
In order to induce the Lenders to extend credit hereunder, each Borrower (a “ Borrower Guarantor ”) hereby irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, the Obligations of the other Borrower (the “ Guaranteed Obligations ”). Each Borrower Guarantor further agrees that the due and punctual payment of the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice to or further assent from it in its capacity as a Borrower Guarantor, and that it will remain bound upon its guarantee hereunder notwithstanding any such extension or renewal of any Guaranteed Obligation.
Each Borrower Guarantor waives presentment to, demand of payment from and protest to the other Borrower of any of the Guaranteed Obligations, and also waives notice of acceptance of its obligations and notice of protest for nonpayment. The obligations of each Borrower Guarantor hereunder shall not be affected by (a) the failure of any Lender or Issuing Bank to assert any claim or demand or to enforce any right or remedy against the other Borrower under the provisions of this Agreement, any other Loan Document or otherwise; (b) any extension or renewal of any of the Guaranteed Obligations; (c) any rescission, waiver, amendment or modification of, or release from, any of the terms or provisions of this Agreement or any other Loan Document or agreement; (d) the failure or delay of any Lender or Issuing Bank to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; (e) the failure of any Lender or Issuing Bank to assert any claim or demand or to enforce any remedy under any Loan Document or any other agreement or instrument; (f) any default, failure or delay, wilful or otherwise, in the performance of the Guaranteed Obligations; or (g) any
 
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other circumstance, 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 Borrower Guarantor or otherwise operate as a discharge of or a defense available to, the Borrower Guarantor as a matter of law or equity or which would impair or eliminate any right of the Borrower Guarantor to subrogation.
Each Borrower 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 Guaranteed 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 other Borrower or any Subsidiary or any other Person.
The obligations of each Borrower 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 Guaranteed 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 Guaranteed Obligations, any impossibility in the performance of the Guaranteed Obligations or otherwise.
Each Borrower 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 Guaranteed Obligation is rescinded or must otherwise be restored by any Lender or Issuing Bank upon the bankruptcy or reorganization of the other Borrower or otherwise.
In furtherance of the foregoing and not in limitation of any other right which any Lender or Issuing Bank may have at law or in equity against each Borrower Guarantor by virtue hereof, upon the failure of the other Borrower to pay any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, such Borrower 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 or Issuing Banks in cash an amount equal the unpaid principal amount of such Guaranteed Obligation.
Upon payment in full by a Borrower Guarantor of any Guaranteed Obligation, each Lender and Issuing Bank shall, in a reasonable manner, assign to such Borrower Guarantor the amount of such Guaranteed Obligation owed to such Lender or such Issuing Bank and so paid, such assignment to be pro tanto to the extent to which the Guaranteed Obligation in question was discharged by such Borrower Guarantor, or make such disposition thereof as such Borrower Guarantor shall direct (all without recourse to any Lender or Issuing Bank and without any representation or warranty by any Lender or Issuing Bank). Upon payment by a Borrower Guarantor of any sums as provided above, all rights of such Borrower Guarantor against the other Borrower arising as a result thereof by way of right of subrogation or otherwise shall in all respects be subordinated
 
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and junior in right of payment to the prior indefeasible payment in full of all the Obligations owed by the other Borrower to the Lenders or Issuing Banks (it being understood that, after the discharge of all the Obligations due and payable from such other Borrower, such rights may be exercised by the Borrower Guarantor notwithstanding that the other Borrower may remain contingently liable for indemnity or other Obligations).
The parties agree that none of the Sole Lead Arranger, Sole Bookrunner, Co-Syndication Agents or Co-Documentation Agents referred to on the cover page shall have any powers, duties or responsibilities under this Agreement or any other Loan Document, except in its capacity, as applicable, as the Administrative Agent, a Lender or an Issuing Bank hereunder.
ARTICLE X
Miscellaneous
SECTION 10.01. 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 Company, to it at 1700 Lincoln Street, Denver, CO 80203, Attention of Treasurer (Telecopy No. (303) 837-6011), Attention: Treasurer;
(b) if to Newmont USA, to it in care of the Company as provided in paragraph (a) above;
(c) 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 Maryann Bui (Telecopy No. (713) 750-2358), with a copy to JPMorgan Chase Bank, N.A., 270 Park Avenue, New York 10017, Attention of Linda Meyer (Telecopy No. (212) 270-5100);
(d) 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 Maryann Bui (Telecopy No. (713) 750-2358), with a copy to JPMorgan Chase Bank, N.A., 270 Park Avenue, New York 10017, Attention of Linda Meyer (Telecopy No. (212) 270-5100);
(e) 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 applicable Borrower;
(f) if to any Lender, to it at its address (or telecopy number) set forth in its Administrative Questionnaire; and
 
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(g) 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 applicable 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 10.02. 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 either Borrower 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.
(b) 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 Borrowers and the Required Lenders or by the Borrowers 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 any other Loan Document, each applicable 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, or reduce any fees payable to any Lender hereunder, without the written consent of each Lender 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)
 
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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, (v) change any of the provisions of this Section 10.02(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, or (vi) release either Borrower from its obligations under Article IX, 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, this Agreement may be amended to extend the Maturity Date or to provide for Additional Credit Commitments in the manner contemplated by Sections 2.09(d) and (e) and without any additional consents.
SECTION 10.03. Expenses; Indemnity; Damage Waiver . (a)The Borrowers shall pay (i) all reasonable out-of-pocket expenses incurred by the Administrative Agent and its Affiliates, including the reasonable 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 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 out-of-pocket expenses incurred by the Administrative Agent or, after the occurrence of a Default or 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 Borrowers, in connection with the foregoing, shall only be required to pay the fees and expenses of (x) one counsel engaged to represent the Administrative Agent and (y) in the case of the preceding clause (iii), (1) one joint counsel engaged to represent all Issuing Banks and all Lenders, except to the extent that the use of joint counsel could reasonably be expected to give rise to any conflict of interest for any such counsel or any Issuing Bank or Lender shall have determined that it may have legal defenses available to it that are different from, additional to or in conflict with those available to any other Issuing Bank or Lender, and (2) such other joint local counsel 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 Borrowers shall indemnify the Administrative Agent, each Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons
 
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(each such Person being called an “ Indemnitee ”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel for any 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, investigation or proceeding (regardless of whether any Indemnitee is a party thereto) 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 Company or any of its Subsidiaries, or any Environmental Liability related in any way to the Company 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 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).
(c) To the extent that the Borrowers fail to pay any amount required to be paid by them to the Administrative Agent or any Issuing Bank or the Swingline Lender under paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the Administrative Agent, such Issuing Bank or the Swingline Lender, 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, no Borrower shall assert, and each hereby waives, any claim against any Indemnitee, 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.
(e) All amounts due under this Section shall be payable promptly after written demand therefor.
SECTION 10.04. 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 no Borrower may (except as otherwise provided herein) assign or otherwise transfer any of its rights or obligations
 
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hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by any 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 Company (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) except in the case of an assignment to a Lender or an Affiliate of a Lender, any assignment of less than the entire remaining amount of the assigning Lender’s Commitment, or any assignment to more than one assignee, shall in each case be subject to the prior written consent of the Company, (iii) 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 Company and the Administrative Agent otherwise consent, (iv) 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 (iv) shall not apply to rights in respect of outstanding Competitive Loans, (v) 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 (vi) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire; and provided further that (i) any consent of the Company otherwise required under the first proviso to this paragraph shall not be required if an Event of Default under clause (h) or (i) of Article VII (including in respect of Newmont USA) has occurred and is continuing and (ii) notwithstanding any other provision in this paragraph (b) (including the preceding clause (i) of this proviso), the prior written consent of the Company shall be required in the case of any assignment to a Person referred to in clause (v) of Section 10.04(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 10.03). Any assignment or
 
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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 each Borrower, shall maintain at one of its offices in The City of 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 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 Borrowers, the Administrative Agent, the Issuing Banks and the Lenders may 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 any 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.
(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 Company’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 Borrowers, 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 Company’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 Company as Persons that are ineligible to participate in Loans or LC Disbursements and Commitments; provided further that any consent of the Company otherwise required under the first proviso to this paragraph (other than any consent required under clause (v) of this paragraph) shall not be required if an Event of Default under clause (h) or (i) of Article VII (including in
 
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respect of Newmont USA) has occurred and is continuing. 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 10.02(b) that affects such Participant. Subject to paragraph (f) of this Section, each Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender, provided such Participant agrees to be subject to Section 2.18(c) as though it were a Lender.
(f) A Participant or, in the case of an assignment to a Lender or an Affiliate of a Lender, the assignee shall not be entitled to receive any greater payment under Section 2.15 or 2.17 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 2.17 unless the Company is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Company, to comply with Section 2.17(e) as though it were a Lender.
(g) Each Lender agrees that it will only provide to a Participant information relating to the Company and its Subsidiaries that (x) 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 (y) becomes available on a nonconfidential basis, in each case other than from a source which is bound by a confidentiality agreement with the Company.
(h) 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 10.05. Survival . All covenants, agreements, representations and warranties made by the Borrowers 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
 
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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 10.03 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 10.06. 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 shall be effective as delivery of a manually executed counterpart of this Agreement. This Agreement shall become effective as provided in Section 4.01.
SECTION 10.07. 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.
SECTION 10.08. 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 any Borrower against any of and all the obligations of the Borrowers 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 10.09. 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) Each Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of the Supreme Court of the State
 
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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 any Borrower or its properties in the courts of any jurisdiction.
(c) Each 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 10.01. 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.
SECTION 10.10. 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 10.11. 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.
 
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SECTION 10.12. 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, (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) with the consent of any Borrower or (h) 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 a Borrower not subject (to the knowledge of such Lender) to a confidentiality agreement with a Borrower. For the purposes of this Section, “ Information ” means all information received from the Borrowers relating to the Borrowers or their business, other than any such information that is available to the Administrative Agent or any Lender on a nonconfidential basis prior to disclosure by a Borrower; provided that, in the case of information received from a Borrower after the Restatement 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 10.13. USA Patriot Act . Each Lender and each Issuing Bank hereby notifies the Borrowers that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “ Act ”), it is required to obtain, verify and record information that identifies each Guarantor, which information includes the name, address and tax identification number of each Guarantor and other information that will allow such Lender to identify each Borrower in accordance with the Act. Each Guarantor 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.
 
73

ARTICLE XI
Treatment of Loans for Purposes of Regulation U
SECTION 11.01. Treatment for Purposes of Regulation U . The Borrowers 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 Borrowers 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 XI shall apply.
SECTION 11.02. 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 XI, 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 11.03(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 11.03(a) and (b) and Section 11.04;
(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 XI, 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 11.03(a) and (b) and Section 11.04; 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 11.03(a) and (b) and Section 11.04.
SECTION 11.03. Allocation of Collateral . (a)The benefits of negative pledges in favor of the Lenders (direct and indirect) in the Margin Stock and the
 
74

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 Borrowers 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 Borrowers 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 Borrowers under this Agreement in connection with the C Credits (collectively, the “ C Credit Amounts ”). Each 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 Borrowers 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 11.03 and the B Credit of such Lender with the benefits described in paragraph (b) of this Section 11.03 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 11.03 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 11.03, 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.
SECTION 11.04. 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 Borrowers 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 11.03 shall be applied first to the payment or prepayment of the B Credit Amounts, second to the payment or prepayment
 
75

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 11.03 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 11.05. Information . The Borrowers 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 11.03 and with Section 11.04 and to further determine compliance with Regulation U, and such documents as such Lender may require to comply with Regulation U.
SECTION 11.06. Individual Lender Responsibility . Each Lender shall be responsible for its own compliance with and administration of the provisions of this Article XI, 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 XI 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.
 
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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	
	
NEWMONT USA LIMITED,	
		
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/ Linda M. Meyer	
Name:	 	Linda M. Meyer	
Title:	 	Vice President	

LENDER SIGNATURE PAGE TO
THE AMENDED AND RESTATED
NEWMONT MINING CREDIT AGREEMENT

Name of Institution:	
	
The Bank of Nova Scotia	
		
by	 	/s/ Ray Clarke	
Name:	 	Ray Clarke	
Title:	 	Director	
For any Institution requiring a second signature line:

by	 	/s/ Alexander Mihailovich	
Name:	 	Alexander Mihailovich	
Title:	 	Associate Director	

LENDER SIGNATURE PAGE TO
THE AMENDED AND RESTATED
NEWMONT MINING CREDIT AGREEMENT

Name of Institution:	
	
The Royal Bank of Scotland Plc	
		
by	 	/s/ Dale Williams	
Name:	 	Dale Williams	
Title:	 	Managing Director, Mining & Metals	
For any Institution requiring a second signature line:

by	 	 	
Name:	 		
Title:	 		

LENDER SIGNATURE PAGE TO
THE AMENDED AND RESTATED
NEWMONT MINING CREDIT AGREEMENT

Name of Institution:	
	
CITICORP USA, INC.	
		
by	 	/s/ Raymond G. Dunning	
Name:	 	Raymond G. Dunning	
Title:	 	Vice President	

LENDER SIGNATURE PAGE TO
THE AMENDED AND RESTATED
NEWMONT MINING CREDIT AGREEMENT

Name of Institution:	
	
HSBC Bank USA, N.A.	
		
by	 	P. E. Kavanagh	
Name:	 	P. E. Kavanagh	
Title:	 	SVP	
For any Institution requiring a second signature line:

by	 	 	
Name:	 		
Title:	 		

LENDER SIGNATURE PAGE TO
THE AMENDED AND RESTATED
NEWMONT MINING CREDIT AGREEMENT

Name of Institution:	
	
Sumitomo Mitsui Banking Corporation	
		
by	 	Masakazu Hasegawa	
Name:	 	Masakazu Hasegawa	
Title:	 	J. G. M.	
For any Institution requiring a second signature line:

by	 	 	
Name:	 		
Title:	 		

LENDER SIGNATURE PAGE TO
THE AMENDED AND RESTATED
NEWMONT MINING CREDIT AGREEMENT

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	

LENDER SIGNATURE PAGE TO
THE AMENDED AND RESTATED
NEWMONT MINING CREDIT AGREEMENT

Name of Institution:	
	
Australia and New Zealand Banking Group Limited	
		
by	 	/s/ John W. Wade	
Name:	 	John W. Wade	
Title:	 	Director	
For any Institution requiring a second signature line:

by	 	 	
Name:	 		
Title:	 		

LENDER SIGNATURE PAGE TO
THE AMENDED AND RESTATED
NEWMONT MINING CREDIT AGREEMENT

Name of Institution:	
	
Banco Bilbao Vizcaya Argentina SA	
		
by	 	/s/ Anne-Maureen Sarfati	
Name:	 	/s/ Anne-Maureen Sarfati	
Title:	 	Global Corporate Banking	
For any Institution requiring a second signature line:

by	 	/s/ Jay Levit	
Name:	 	Jay Levit	
Title:	 	Vice President, Global Corporate Banking	

LENDER SIGNATURE PAGE TO
THE AMENDED AND RESTATED
NEWMONT MINING CREDIT AGREEMENT

Name of Institution:	
	
Bank of Montreal, Chicago Branch	
		
by	 	/s/ Kristina H. Burden	
Name:	 	Kristina H. Burden	
Title:	 	Vice President	
For any Institution requiring a second signature line:

by	 	 	
Name:	 		
Title:	 		

LENDER SIGNATURE PAGE TO
THE AMENDED AND RESTATED
NEWMONT MINING CREDIT AGREEMENT

Name of Institution:	
	
The Bank of Tokyo-Mitsubishi, Ltd.	
		
by	 	/s/ K. Glasscock	
Name	 	: K. Glasscock	
Title:	 	VP & Manager	
For any Institution requiring a second signature line:

by	 	/s/ J. Fort	
Name:	 	J. Fort	
Title:	 	Vice President	

LENDER SIGNATURE PAGE TO
THE AMENDED AND RESTATED
NEWMONT MINING CREDIT AGREEMENT

			
Name of Institution:	
	
BNP Paribas	
		
by	 	/s/ Larry Robinson	
Name:	 	Larry Robinson	
Title:	 	Director	
For any Institution requiring a second signature line:

by	 	/s/ Polly Schott	
Name:	 	Polly Schott	
Title:	 	Vice President	

LENDER SIGNATURE PAGE TO
THE AMENDED AND RESTATED
NEWMONT MINING CREDIT AGREEMENT

Name of Institution:	
	
CIBC Inc.	
		
by	 	/s/ Dominic J. Sorresso	
Name:	 	Dominic J. Sorresso	
Title:	 	Executive Director
CIBC World Markets Corp., Authorized Signatory, CIBC Inc.	
For any Institution requiring a second signature line:

by	 	 	
Name:	 		
Title:	 		

LENDER SIGNATURE PAGE TO
THE AMENDED AND RESTATED
NEWMONT MINING CREDIT AGREEMENT

Name of Institution:	
	
Commonwealth Bank of Australia	
		
by	 	/s/ Jeff Heazlewood	
Name:	 	Jeff Heazlewood	
Title:	 	Relationship Executive	
For any Institution requiring a second signature line:

by	 	 	
Name:	 		
Title:	 		

LENDER SIGNATURE PAGE TO
THE AMENDED AND RESTATED
NEWMONT MINING CREDIT AGREEMENT

Name of Institution:	
	
Deutsche Bank AG New York Branch	
		
by	 	/s/ Ming K. Chu	
Name:	 	/s/ Ming K. Chu	
Title:	 	Vice President	
For any Institution requiring a second signature line:

by	 	/s/ Rainer Meier	
Name:	 	Rainer Meier	
Title:	 	Vice President	

LENDER SIGNATURE PAGE TO
THE AMENDED AND RESTATED
NEWMONT MINING CREDIT AGREEMENT

Name of Institution:	
	
Mizuho Corporate Bank, Ltd.	
		
by	 	/s/ Leon Mo	
Name:	 	Leon Mo	
Title:	 	Senior Vice President	
For any Institution requiring a second signature line:

by	 	 	
Name:	 		
Title:	 		

LENDER SIGNATURE PAGE TO
THE AMENDED AND RESTATED
NEWMONT MINING CREDIT AGREEMENT

Name of Institution:	
	
Royal Bank of Canada	
		
by	 	/s/ Dustin Craven	
Name:	 	Dustin Craven	
Title:	 	Attorney-in-Fact	
For any Institution requiring a second signature line:

by	 	 	
Name:	 		
Title:	 		

LENDER SIGNATURE PAGE TO
THE AMENDED AND RESTATED
NEWMONT MINING CREDIT AGREEMENT

Name of Institution:	
	
The Bank of New York	
		
by	 	/s/ John-Paul Marotta	
Name:	 	John-Paul Marotta	
Title:	 	Managing Director	
For any Institution requiring a second signature line:

by	 	 	
Name:	 		
Title:	 		

LENDER SIGNATURE PAGE TO
THE AMENDED AND RESTATED
NEWMONT MINING CREDIT AGREEMENT

Name of Institution:	
	
Société Générale	
		
by	 	/s/ Chris Henstock	
Name:	 	Chris Henstock	
Title:	 	Managing Director, Mining & Commodities Finance	
For any Institution requiring a second signature line:

by	 	 	
Name:	 		
Title:	 		

LENDER SIGNATURE PAGE TO
THE AMENDED AND RESTATED
NEWMONT MINING CREDIT AGREEMENT

Name of Institution:	
	
U. S. Bank National Association	
		
by	 	/s/ Jacob Payne	
Name:	 	Jacob Payne	
Title:	 	Vice President	
For any Institution requiring a second signature line:

by	 	 	
Name:	 		
Title:	 		

Exhibit 10.2
NEWMONT MINING CORPORATION
2005 STOCK INCENTIVE PLAN
RESTRICTED STOCK AWARD AGREEMENT
This Agreement (“Agreement”) is dated as of April 30, 2007 between Newmont Mining Corporation, a Delaware corporation (“Newmont”) and              (“Executive”).
WITNESSETH:
WHEREAS, the Company seeks to retain the services of Executive and for that purpose, the Compensation and Management Development Committee of the Newmont Board of Directors (“Newmont Committee”) has awarded Executive a grant of restricted shares of Newmont’s common stock (“Restricted Stock”), subject to the restrictions set forth in this Agreement pursuant to the terms and conditions of the 2005 Stock Incentive Plan (“Stock Plan”); capitalized terms used but not defined herein shall have the meanings given such terms in the Stock Plan;
NOW, THEREFORE, in consideration of the premises and as an inducement and incentive to Executive to perform his duties and fulfill his responsibilities on behalf of Newmont and its subsidiaries at the highest level of dedication and competence, and other good and valuable consideration, receipt of which is hereby acknowledged, Newmont hereby awards to Executive [              ] shares of Restricted Stock, pursuant to the terms and subject to the conditions and restrictions set forth in this Agreement and the Stock Plan, including the Vesting Period, as such term is defined in this Agreement, and in connection with such award, Newmont and Executive hereby agree as follows:
AGREEMENT:
1. Vesting Period . The Vesting Period shall commence on the date of this Agreement and shall end on the dates set forth below as to that percentage of the total shares of Restricted Stock subject to this Agreement as set forth opposite each such date:

Date	  	Percentage Vested	
April 30, 2009	  	66%	
April 30, 2010	  	34%	
2. Stock Certificate Legend . Executive acknowledges that if stock certificates are issued to him and registered in his name for the Restricted Stock, such certificate(s) shall bear the following legend and such other legends as may be required by law or contract:
“The shares represented by this certificate are subject to the restrictions, terms and conditions set forth in a Restricted Stock Award Agreement, dated as of [              ], between Newmont Mining Corporation and the registered owner (“Agreement”). Copies of the Agreement are on file in the offices of the Secretary, Newmont Mining Corporation, 1700 Lincoln Street, Denver, Colorado 80203.”
Executive agrees that upon receipt of such stock certificate(s) to deposit all such stock certificate(s) with Newmont or such other escrow holder as the Newmont Committee may

appoint, together with a stock power endorsed in blank or other appropriate instrument of transfer, to be held by Newmont or such escrow holder. The foregoing to the contrary notwithstanding, Executive agrees that, in Newmont’s discretion, such stock certificate(s), so registered and legended, may be delivered directly to and held by the Secretary of Newmont, or, alternatively, Executive’s ownership of the Restricted Stock may be evidenced solely by a “book entry” ( i.e, a computerized or manual entry) in the records of Newmont or its designated stock transfer agent in Executive’s name.
3. Nontransferability . Executive acknowledges that no shares of Restricted Stock, or any interest therein, may be sold, transferred, pledged, assigned, encumbered or otherwise disposed of (whether voluntary or involuntary or by operation of law, by judgment, levy, attachment, garnishment or other legal or equitable proceedings (including bankruptcy)) prior to the end of the Vesting Period with respect to such shares of Restricted Stock, provided, however, that (i) the Vesting Period shall terminate and all of the Restricted Stock shall become fully vested and nonforfeitable upon the occurrence of a Change of Control as defined in the Stock Plan, and (ii) Executive may, with the prior written approval of the Vice President of Human Resources of Newmont, transfer all or any portion of his Restricted Stock to a family trust or similar vehicle for personal estate planning purposes, in the manner and subject to the terms prescribed by the Vice President of Human Resources of Newmont.
4. Termination of Employment . If (i) Executive dies, (ii) Executive’s employment by Newmont or any subsidiary terminates by reason of Disability (as determined under the terms of the Long-Term Disability Plan of Newmont), or (iii) there shall occur a Change of Control as defined in the Stock Plan, in any such case prior to the completion of the Vesting Period, the Vesting Period shall terminate, and all of the shares of Restricted Stock not theretofore forfeited in accordance with this Agreement shall become fully vested and nonforfeitable, as of the date of Executive’s death or other termination of employment, referred to in clause (i) or (ii), or immediately prior to the date of any such event referred to in clause (iii). If Executive ceases to be employed by Newmont and/or a Subsidiary prior to completion of the Vesting Period under circumstances other than those set forth in clause (i), (ii) or (iii) of the immediately preceding sentence, Executive agrees that the Restricted Stock will be immediately and unconditionally forfeited and revert to Newmont, without any action required by Executive or Newmont, to the extent that the Vesting Period had not ended in accordance with paragraph 1 hereof.
5. Stock Power . Upon expiration or termination of the Vesting Period, the stock power (if any) applicable to shares of Restricted Stock theretofore subject to such forfeiture but not forfeited shall lapse, and such shares shall be fully vested and nonforfeitable.
6. Rights as a Stockholder . Executive shall have all rights of a stockholder (including, without limitation, dividend and voting rights) with respect to the Restricted Stock, for record dates occurring on or after the date of this Agreement and prior to the date any such shares of Restricted Stock are forfeited in accordance with this Agreement. Any dividends paid in the form of Newmont stock or other property or distributions other than normal dividends (whether in cash, stock, securities or derivative securities, or otherwise, including, without limitation, any change in the shares of Restricted Stock pursuant to Paragraph 16 of the Stock Plan paid or made with respect to the Restricted Stock shall, during the Vesting Period, be deposited with Newmont or the escrow holder appointed pursuant to paragraph 2 hereof, together with a stock power endorsed in blank or other appropriate instrument of transfer, or credited to Executive’s book-entry account established under paragraph 2 hereof, as applicable, and shall be subject to the same restrictions (including, without limitation, the Vesting Period) as such Restricted Stock and otherwise considered to be such Restricted Stock for all purposes hereunder.
 
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7. Withholding Taxes . Executive acknowledges the existence of federal, state, local and foreign income tax and employment tax withholding obligations with respect to the Restricted Stock and agrees that such obligations must be met. If Executive properly elects, within the period permitted under Section 83(b) of the Code after the date on which the shares of Restricted Stock are transferred to Executive, to be taxed with respect to all or any portion of such shares as of the date of transfer rather than the date or dates upon which Executive would otherwise be taxable under Section 83(a) of the Code, Executive shall file a copy of such election with Newmont within the period prescribed by the Treasury Regulations promulgated under Section 83(b) of the Code, and Executive agrees to pay to Newmont in cash at the time of such election any taxes required to be withheld with respect to such shares. To the extent that the immediately preceding sentence does not apply, upon the expiration or termination of the Vesting Period or any portion thereof with respect to shares of Restricted Stock, or upon such other date as of which the value of any shares of Restricted Stock first becomes includible in Executive’s gross income for tax purposes (such shares, the “Vested Stock”), Executive hereby (a) directs Newmont to deliver on behalf of Executive to Mellon Investor Services, or its successors or assigns, or such other entity that may be designated by Newmont for such purpose from time to time (the “Designated Entity”), the number of shares of vested Restricted Stock that will result in proceeds at least equal to the amount of any withholding taxes due in respect of the vested Restricted Stock, and (b) directs the Designated Entity (or its designated broker) to sell such shares on behalf of Executive and to deliver to Newmont a portion of the proceeds from such sale equal to the amount of such withholding taxes in respect of such vested Restricted Stock (or portion thereof); provided , however , that if the Newmont Committee determines that such a sale of shares of vested Restricted Stock would or may be prohibited by Newmont’s Stock Trading Policy or by any applicable law, regulation or rule, such shares shall not be sold in the manner described above but instead a portion of the shares of vested Restricted Stock shall be withheld by Newmont and returned to Newmont’s Treasury Account in satisfaction of such applicable withholding taxes (based on the minimum statutory tax withholding rates that are applicable to supplemental taxable income); provided further , however , that, in lieu of any such sale or retention of shares, Executive may elect to pay any such taxes to Newmont in cash by filing written notice of such election with Newmont not less than five (5) days prior to the date any shares of Restricted Stock become vested Restricted Stock and remitting such payment to Newmont not later than such date. Notwithstanding the foregoing, the Newmont Committee may, in its sole discretion, require Executive to agree to not make an election pursuant to Section 83(b) of the Code as a condition for the receipt of the Restricted Stock hereunder.
8. Acknowledgements .
(a) Executive hereby acknowledges receipt of a copy of the Stock Plan and agrees to be bound by all of the terms and provisions thereof, including the terms and provisions adopted after the award of the Restricted Stock but prior to the completion of the Vesting Period, subject to the last paragraph of Paragraph 19 of the Stock Plan as in effect on the date hereof. If and to the extent that any provision contained in this Agreement is inconsistent with the Stock Plan, the Stock Plan shall govern.
(b) This Agreement and the obligation of Newmont to transfer shares of Restricted Stock hereunder shall be subject to (a) all applicable federal and state laws, rules and regulations and (b) any registration, qualification, approvals or other requirements imposed by any government or regulatory agency or body which the Newmont Committee shall, in its sole discretion, determine to be necessary or applicable.
 
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9. Notices . Any notice or other communication required or permitted hereunder shall, if to Newmont, be in accordance with the Stock Plan, and, if to Executive, be in writing and delivered in person or by registered or certified mail or overnight courier, postage prepaid, addressed to Executive at his last known address as set forth in Newmont’s records.
10. Severability . If any of the provisions of this Agreement should be deemed unenforceable, the remaining provisions shall remain in full force and effect.
11. Governing Law . This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware.
12. Transferability of Agreement . This Agreement may not be transferred, assigned, pledged or hypothecated by either party hereto, other than by operation of law. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns, including, in the case of Executive, his estate, heirs, executors, legatees, administrators, designated beneficiary and personal representatives. Nothing contained in this Agreement shall be deemed to prevent transfers of the Restricted Stock in the event of Executive’s death in accordance with Paragraph 17(b) of the Stock Plan.
13. Counterparts . This Agreement has been executed in two counterparts, each of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, Newmont Mining Corporation has caused this Agreement to be executed by its Vice President and Secretary and Executive has executed this Agreement, both as of the day and year first written above.

NEWMONT MINING CORPORATION	
		
By:	 	 	
	 	Sharon E. Thomas	
	 	Vice President and Secretary	
			
Agreed to this      day of              , 2007.	

Executive	
 
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Exhibit 12.1
NEWMONT MINING CORPORATION AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Amounts in millions except ratio)

 	  	Three Months
Ended
March 31,
2007	
Earnings:	  			
Income from continuing operations before income tax expense (1) (2)	  	$	186	
Adjustments:	  			
Fixed charges added to earnings	  	 	25	
Dividends from equity affiliates	  	 	1	
Amortization of capitalized interest	  	 	3	
	  	 	 	
	  	$	215	
	  	 	 	
Fixed Charges:	  			
Net interest expense (3)	  	 	23	
Portion of rental expense representative of interest	  	 	2	
	  	 	 	
Fixed charges added to earnings	  	 	25	
Capitalized interest	  	 	12	
	  	 	 	
	  	$	37	
	  	 	 	
Ratio of earnings to fixed charges	  	 	5.8	

(1)	 	Income from continuing operations before income tax expense, minority interest and equity income of affiliates.	

(2)	 	Excludes interest on income tax liabilities. Interest and penalties related to income taxes are included in Income tax expense .	

(3)	 	Includes interest expense of majority-owned subsidiaries and amortization of debt issuance costs.	
 
Exhibit 31.1
CERTIFICATION OF PRINCIPAL EXECUTIVE OFFICER
(Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002)
I, Wayne W. Murdy, certify that:
1. I have reviewed this Quarterly Report on Form 10-Q of Newmont Mining Corporation;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

/s/ WAYNE W. MURDY	
Wayne W. Murdy	
Chief Executive Officer	
April 27, 2007
 
Exhibit 31.2
CERTIFICATION OF PRINCIPAL FINANCIAL OFFICER
(Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002)
I, Richard T. O’Brien, certify that:
1. I have reviewed this Quarterly Report on Form 10-Q of Newmont Mining Corporation;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

	
/s/ RICHARD T. O’BRIEN	
Richard T. O’Brien	
Chief Financial Officer	
April 27, 2007
 
Exhibit 32.1
CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350
(Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002)
In connection with the Quarterly Report on Form 10-Q for the quarter ended March 31, 2007 of Newmont Mining Corporation (the “Company”) as filed with the Securities and Exchange Commission on the date hereof (the “Report”) and pursuant to 18. U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, I, Wayne W. Murdy, Chief Executive Officer of the Company, certify, that to my knowledge:
1. The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
2. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

/s/ WAYNE W. MURDY	
Wayne W. Murdy	
Chief Executive Officer	
April 27, 2007
Note: A signed original of this written statement required by Section 906 has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request.
 
Exhibit 32.2
CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350
(Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002)
In connection with the Quarterly Report on Form 10-Q for the quarter ended March 31, 2007 of Newmont Mining Corporation (the “Company”) as filed with the Securities and Exchange Commission on the date hereof (the “Report”) and pursuant to 18. U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, I, Richard T. O’Brien, Chief Financial Officer of the Company, certify, that to my knowledge:
1. The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
2. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

/s/ RICHARD T. O’BRIEN	
Richard T. O’Brien	
Chief Financial Officer	
April 27, 2007
Note: A signed original of this written statement required by Section 906 has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request.