Exhibit 5.2
to | Newcrest Finance Pty Limited Level 5, 500 Hay Street Subiaco, Western Australia, 6008 Australia Newmont Corporation 6900 E Layton Avenue Suite 700 Denver, CO 80237 (each an “Addressee”) | |
Newcrest Finance Pty Limited (ACN 072 648 705) (“Company”)
Automatic Shelf Registration Statement on Form S-3ASR
We refer to the filing with the Securities and Exchange Commission (“Commission”) under the United States Securities Act 1933, as amended (the “Securities Act”), of the Registration Statement (as defined below) in respect of which we have acted as legal advisers to Newmont Corporation (“Newmont”), the Company (together with Newmont, the “Issuers”) and Newmont USA Limited (the “Guarantor” and, together with the Issuers, the “Registrants”).
In this opinion:
ASIC means the Australian Securities and Investments Commission.
Base Indenture means the form of indenture appended to the Registration Statement, to be entered into between Newmont, the Guarantor and the Trustee.
Corporations Act means the Corporations Act 2001 of Australia.
Documents means the:
| (a) | Registration Statement; |
Governing Jurisdiction means the State of New York whose laws govern the Indenture.
Indenture means the Base Indenture as supplemented by any supplemental indenture between the Registrants and the Trustee.
law of the Relevant Jurisdictions means the common law, principles of equity and laws constituted by legislation that is available to the public generally, in force in the Relevant Jurisdictions.
Registration Statement means the Registration Statement on Form S-3ASR dated 26 July 2024 to be filed with the Commission by the Registrants as registrants with respect to, among other things, an indeterminate amount of debt securities to be co-issued by the Company described therein (the “Debt Securities”).
Relevant Jurisdictions means Victoria, New South Wales and the federal jurisdiction of the Commonwealth of Australia.
Trustee means The Bank of New York Mellon Trust Company, N.A..
Verification Certificate means the verification certificate given by Matthew Popham as a director of the Company dated 24 July 2024.
| 2 | Documents and other materials |
We have examined copies (certified or otherwise identified to our satisfaction) of, and rely on:
| (a) | the final form of Registration Statement; |
| (c) | the constitution of the Company; |
| (d) | an extract of the circulating resolutions of the board of directors of the Company dated 23 July 2024; |
| (e) | the power of attorney granted by the Company dated on or about 26 July 2024 in respect of the Registration Statement (“Power of Attorney”); and |
| (f) | the Verification Certificate. |
This opinion relates only to the law of the Relevant Jurisdictions, as interpreted by courts of the Relevant Jurisdictions, at 9.00 am (Sydney time) on the date of this opinion.
This opinion is given on the basis that it will be construed in accordance with the laws of New South Wales. Anyone relying on this opinion agrees that this opinion and all matters (including, without limitation, any liability) arising in any way from it are to be governed by the laws of New South Wales and will be subject to the non-exclusive jurisdiction of the courts of New South Wales.
We have examined, and rely on:
| (a) | an extract of the public records produced by ASIC in respect of the Company as at 7:25 am (Sydney time) on 26 July 2024; and |
| (b) | a search of the insolvency notices website maintained by ASIC in respect of the Company as at 7:24 am (Sydney time) on 26 July 2024. |
We have assumed that the extract produced by ASIC reflects information provided by the Company to ASIC. We have not examined any documents that the Company may have filed with ASIC, other than where we have expressly stated otherwise in this opinion. The information in the extract, or produced by the searches, may not be correct, complete or up to date.
We have not conducted any other searches or investigations for the purposes of this opinion.
Our opinion is as follows, subject to the assumptions in Schedule 1 and the qualifications in Schedule 2.
| (a) | The Company is incorporated and validly existing under the laws of the Commonwealth of Australia and has not been dissolved. |
| (b) | The Company has the corporate power, authority and capacity to: |
| (i) | execute and file the Registration Statement; |
| (ii) | enter into the Indenture and perform its obligations under it; and |
| (iii) | issue the Debt Securities and perform its obligations under them. |
| (c) | The Company has taken all necessary corporate action to authorise: |
| (i) | the execution and the filing of the Registration Statement for the issue and sale of the Debt Securities; and |
| (ii) | the execution of, and the performance by the Company of its obligations under, the Indenture. |
| (d) | The Registration Statement has been duly executed on behalf of the Company. |
| (e) | The filing of the Registration Statement and the entry by the Company into, and the performance by the Company of its obligations under, the Indenture does not and will not contravene: |
| (i) | any law in force in the Relevant Jurisdictions; or |
| (ii) | the constitution of the Company (as annexed to the Verification Certificate). |
| (f) | The Company does not require any authorisation from any government agency in the Relevant Jurisdictions in connection with the: |
| (i) | filing of the Registration Statement; or |
| (ii) | entry into, and performance by the Company of its obligations under, the Indenture. |
| (i) | the Registration Statement has become effective under the Securities Act; |
| (ii) | the Indenture has been duly executed and delivered, the terms of the Debt Securities and the terms of the issuance and sale of the Debt Securities have been duly established in conformity with the Indenture so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company; |
| (iii) | the Debt Securities have been duly executed and authenticated in accordance with the Indenture; and |
| (iv) | the Debt Securities have been issued and sold as contemplated in the Registration Statement, |
to the extent the laws of the Relevant Jurisdictions are relevant, the Debt Securities will be validly issued and will constitute valid and legally binding obligations of the Company subject to bankruptcy, insolvency, fraudulent transfer, re-organisation, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equitable principles.
This opinion is rendered to you solely in connection with the filing of the Registration Statement and is not to be relied upon for any other purpose.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to our firm as counsel for the Registrants appearing in the prospectus forming a part of the Registration Statement under the caption “Validity of the Securities”. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act and the rules and regulations of the Commission promulgated thereunder.
We also consent to White & Case LLP relying on this opinion for the purpose of the opinion given by them and filed as an exhibit to the Registration Statement.
This opinion is strictly limited to the matters stated in it and does not apply by implication to any other matters not specifically referred to in this opinion and we have no obligation to update it.
Yours faithfully
/s/ King & Wood Mallesons
King & Wood Mallesons
Contact
Ken Astridge | Partner King & Wood Mallesons T +61 2 9296 2146
M +61 418 776 334
F +61 2 9296 3999
E ken.astridge@au.kwm.com |
Schedule 1 Assumptions
We have not taken any step to investigate whether the assumptions in this opinion are correct, except as expressly stated in this opinion.
However, without making any enquiries beyond the steps stated in this opinion, the people primarily responsible for the preparation of this opinion (being Ken Astridge and Caitlin Lee) are not actually aware that any of the assumptions is incorrect.
| 1 | All dates, signatures, seals and duty markings are authentic and all signatures are made by, or applied with the authority of, the signatory. |
| 2 | If we have reviewed a copy of a document, it is a correct and complete copy of the original. |
| 3 | If we have reviewed only a draft of a document, it has been or will be executed in the form of that draft. |
| 4 | The Documents constitute legal, valid and binding obligations of all parties and are enforceable against all parties (other than, to the extent the laws of the Relevant Jurisdictions are relevant, the Company) in accordance with their terms under all applicable laws. |
| 5 | No Document has been amended, released or terminated. |
| 6 | The Company enters into, or will enter into, the Documents to which it is expressed to be a party in its personal capacity, and not as trustee or agent or in any other capacity. |
| 7 | Each of the assumptions set out in section 129 of the Corporations Act is correct in relation to each Document, the Power of Attorney and the Company. |
| 8 | Each person who executed the Registration Statement on behalf of the Company held the position they purported to hold. |
| 9 | The Power of Attorney has not been amended or revoked. |
| 10 | The authorisations listed in paragraph 2(d) remain in effect. |
| 11 | Where the Company has executed a Document or the Power of Attorney outside the Relevant Jurisdictions, all requirements have been satisfied under all applicable laws other than the laws of the Relevant Jurisdictions. |
| (a) | has been or will be validly authorised and entered into by each party to it other than the Company and is, or will when entered into be, binding on, and enforceable against, each such party under all applicable laws; |
| (b) | is binding and enforceable against the Company under all applicable laws other than the laws of the Relevant Jurisdictions (but including the laws of the Governing Jurisdiction); and |
| (c) | takes effect or will take effect when entered into in accordance with its terms as those terms would be understood in the Relevant Jurisdictions. |
| 13 | If a Document is to be performed in a jurisdiction other than the Relevant Jurisdictions, its performance will not be illegal under the laws of that jurisdiction. |
| 14 | The Company was solvent when and immediately after it executed the Registration Statement. |
| 15 | The Banking Code of Practice of the Australian Banking Association does not apply to the Documents and nor does any other industry code. |
| 16 | Any stamp duty, duty or other similar tax in connection with the Documents has been or will be paid. |
| 17 | Each party to the Documents who carries on a financial services business in Australia and who provides a financial service in connection with the Documents has complied with all its obligations in that regard under the Corporations Act. |
| 18 | The choice of laws to govern the Indenture, and the submission to courts of that jurisdiction, are in good faith and not contrary to public policy. |
Schedule 2 Qualifications
| 1 | A statement that an obligation is "binding" or "enforceable" means that the obligation is of a type and form that courts of the Relevant Jurisdictions will generally enforce. It does not mean that the obligation and the rights of a creditor with respect to it can be enforced, or that the obligation is binding, in all circumstances. For example: |
| (a) | equitable remedies, such as injunction and specific performance, are discretionary; |
| (b) | an obligation and the rights of a creditor with respect to it may be affected by laws relating to insolvency (including, without limitation, administration or small business restructuring) or other laws that affect creditors' rights generally; |
| (c) | an obligation and the rights of a creditor with respect to it may be affected by general law doctrines or statutory relief in relation to matters such as fraud, misrepresentation, mistake, duress, unconscionable conduct, unfair contracts legislation, frustration, estoppel, waiver, lapse of time, penalties, courts retaining their ability to adjudicate, public policy or illegality; |
| 2 | Following certain insolvency or trigger events, a right arising under a contract, agreement or arrangement may be stayed or rendered unenforceable. |
| 3 | A court might decline to exercise jurisdiction, for example if it considers that it is not the most appropriate forum or if the subject matter is concurrently before another court. |
| 4 | We express no opinion on any provision of a Document that requires a person to do or not do something that is not clearly identified in the provision, or to comply with another document. |
| 5 | Laws in connection with sanctions, terrorism or money laundering may restrict or prohibit payments, transactions and dealings in certain cases. |
| 6 | We express no opinion on the accuracy, completeness, correctness or suitability of any formula, equation or mathematical calculation set out in the Registration Statement. |
| 7 | We express no opinion as to any law which has not yet started to apply, any proposed change in law, any pending judgment or any judgment which is not yet final or the implications of any of them. |
| 8 | We express no opinion on whether a court in the Relevant Jurisdictions would decide to give a judgment for a monetary obligation expressed in a foreign currency in that currency (although there are decisions indicating it has power to do so), or as to the rate of exchange at which such monetary obligation could be converted to Australian dollars for the purposes of enforcement. |
| 9 | Proceedings in a Relevant Jurisdiction to enforce a judgment will not be successful if the rules governing proceedings in the Relevant Jurisdiction have not been satisfied, or there are grounds to deny enforcement, such as: |
| (a) | the party in whose favour the judgment is given and the applicant in the proceedings are not the same; |
| (b) | the court giving the judgment lacked jurisdiction to give the judgment; |
| (c) | the judgment was obtained by fraud or duress or in a manner contrary to natural justice or public policy; or |
| (d) | the matter determined by the judgment was the subject of an earlier final and conclusive judgment by another court having jurisdiction. |
| 10 | We express no opinion as to whether: |
| (a) | a court will give effect to a choice of laws to govern the Documents to the extent that the choice of laws applies to non-contractual obligations arising out of, or in connection with, the Documents (including, without limitation, non-contractual obligations within the meaning of Regulation No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (known as “Rome II”)); or |
| (b) | a foreign judgment in relation to a non-contractual obligation would be enforced in the Relevant Jurisdictions. |
| 11 | We do not opine on any taxation or revenue laws. |
