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UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK
In re: Chapter 11
Kumtor Gold Company CJSC and Kumtor Case No. 21-11051 (LGB) Operating Company CJSC,1 (Jointly Administered) Debtors.
Kumtor Gold Company CJSC and Kumtor Operating Company CJSC,
Plaintiff. Adversary Pro. No. 21-01175 (LGB) v.
Kyrgyz Republic,
Defendant.
DECLARATION OF BENJAMIN MINTZ IN SUPPORT OF THE MEMORANDUM OF LAW IN OPPOSITION TO DEBTORS’ MOTION FOR AN ORDER TEMPORARILY RESTRAINING THE KYRGYZ REPUBLIC
I, Benjamin Mintz, under penalty of perjury, hereby declare as follows:
1. I am admitted to practice law in the State of New York and the Southern District of
New York. I am a partner with the law firm of Arnold & Porter Kaye Scholer LLP, counsel to the
Kyrgyz Republic, which maintains an office at 250 West 55th Street, New York, NY 10019-9710.
I respectfully submit this Declaration (this “Declaration”) to the Court in support of the
Memorandum of Law in Opposition to Debtors’ Motion for an Order Temporarily Restraining the
Kyrgyz Republic, filed contemporaneously herewith.
1 The Debtors’ corporate headquarters is located at 24 Ibraimova Street, 720001, Bishkek, the Kyrgyz Republic.
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2. Attached hereto as Exhibit 1 is a true and correct copy of the transcript of the hearing held before this Court on June 6, 2021 with respect to the above captioned matter.
3. Attached hereto as Exhibit 2 is a true and correct copy of the charter of Kumtor
Operating Company.
4. Attached hereto as Exhibit 3 is a true and correct copy of the charter of Kumtor
Gold Company.
5. Attached hereto as Exhibit 4 is a true and correct copy of the May 6th, 2021,
Amendment to the Law of the Kyrgyz Republic on Joint-Stock Companies, in both the original
Russian and as a certified English translation.
6. Attached hereto as Exhibit 5 is a true and correct copy of the May 17th, 2021 Decree
No. 7 of the Cabinet of Ministers of the Kyrgyz Republic Approving the Procedure of appointment of a temporary external manager, in both the original Russian and as a certified English translation.
7. Attached hereto as Exhibit 6 is a true and correct copy of the May 17th, 2021 Order
No 2-r of the Cabinet of Ministers of the Kyrgyz Republic, in both the original Russian and as a certified English translation.
8. Attached hereto as Exhibit 7 is a true and correct copy of the May 17th 2021 Order
No. 25 of the Chairman of the Cabinet of Ministers of the Kyrgyz Republic Regarding Tengiz
Bolturuk, in both the original Russian and as a certified English translation.
9. Attached hereto as Exhibit 8 is a true and correct copy of the transcript of the hearing held before this Court on June 29, 2021 with respect to the above captioned matter.
10. Attached hereto as Exhibit 9 is a true and correct copy of a Notice of Arbitration letter sent from Sullivan and Cromwell LLP to the Government of the Kyrgyz Republic, dated
May 14, 2021.
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11. Attached hereto as Exhibit 10 is a true and correct copy of a First Amended Notice of Arbitration letter sent from Sullivan and Cromwell LLP to the Government of the Kyrgyz
Republic, Kyrgyzaltyn OJSC, and Arnold & Porter Kaye Scholer LLP, dated June 16, 2021.
12. Attached hereto as Exhibit 11 is a true and correct copy of the Order of the
Leninsky District Court of Bishkek issued on July 6, 2021 in both the original Russian and as a certified English translation.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true
and correct to the best of my knowledge, information, and belief.
Dated: July 16, 2021 New York, New York Respectfully submitted,
/s/ Benjamin Mintz Benjamin Mintz
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EXHIBIT 1 21-11051-lgb Doc 90-1 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 1 Pg 2 of 81
In Re: KUMTOR GOLD COMPANY CSJC and KYRGYZ REPUBLIC
June 8, 2021
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2 UNITED STATES BANKRUPTCY COURT
3 SOUTHERN DISTRICT OF NEW YORK
4 ------x
5
6 In the Matter of:
7 KUMTOR GOLD COMPANY CSJC and Main Case No.
8 KYRGYZ REPUBLIC, 21-11051-lgb
9 Debtors.
10 ------x
11
12 United States Bankruptcy Court
13 One Bowling Green
14 New York, New York
15
16 June 8, 2021
17 10:00 AM
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21 B E F O R E:
22 HON. LISA G. BECKERMAN
23 U.S. BANKRUPTCY JUDGE
24
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2 Motion for Joint Administration Debtors Motion for Entry of an
3 Order (I) Directing Joint Administration of Chapter 11 Cases
4 and (II) Waiving Requirements of Section 342(c)(1) of the
5 Bankruptcy Code and Bankruptcy Rules 1005 and 2002(n)
6
7 Motion to Extend Deadline to File Schedules or Provide Required
8 Information Debtors Motion for Entry of an Order Extending Time
9 to File Schedules of Assets and Liabilities, Schedules of
10 Current Income and Expenses, Schedules of Executory Contracts
11 and Unexpired Leases and Statements of Financial Affairs
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13 Motion to Authorize Debtors Motion for Entry of an Order (I)
14 Authorizing the Debtors to (A) Maintain a List of Creditors in
15 Lieu of Submitting a Formatted Mailing Matrix and (B) File a
16 Consolidated List of the Debtors Top 30 Creditors and (II)
17 Establishing Procedures for Notifying Parties of Commencement
18 of These Chapter 11 Cases
19
20 Motion to Appoint Bankruptcy Management Solutions, Inc. d/b/a
21 Stretto as Claims and Noticing Agent Debtors Application
22 Seeking Entry of an Order (I) Authorizing and Approving the
23 Appointment of Stretto as Claims and Noticing Agent and (II)
24 Granting Related Relief
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2 Motion to Authorize Debtors Motion for Entry of an Order
3 Enforcing Sections 362, 365(e)(1) and 525 of the Bankruptcy
4 Code
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20 Transcribed by: Sharona Shapiro
21 eScribers, LLC
22 352 Seventh Avenue, Suite #604
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2 A P P E A R A N C E S (All present by video or telephone):
3 SULLIVAN & CROMWELL LLP
4 Proposed Counsel to Debtors
5 125 Broad Street
6 New York, NY 10004
7
8 BY: JAMES L. BROMLEY, ESQ.
9 CHRISTIAN P. JENSEN, ESQ.
10
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12 ARNOLD & PORTER KAYE SCHOLER LLP
13 Attorneys for Government of Kyrgyzstan
14 250 West 55th Street
15 New York, NY 10019
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17 BY: BENJAMIN MINTZ, ESQ.
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2 ARNOLD & PORTER KAYE SCHOLER LLP
3 Attorneys for Government of Kyrgyzstan
4 70 West Madison Street
5 Suite 4200
6 Chicago, IL 60602
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8 BY: SETH J. KLEINMAN, ESQ.
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11 U.S. DEPARTMENT OF JUSTICE
12 Attorneys for Office of The United States Trustee
13 U.S. Federal Office Building
14 201 Varick Street, Suite 1006
15 New York, NY 10014
16
17 BY: ANDREA B. SCHWARTZ, ESQ.
18 SHARA CORNELL, ESQ.
19
20
21 ALSO PRESENT:
22 DANIEL DESJARDINS, representative of Kumtor Gold Company
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1 P R O C E E D I N G S
2 THE COURT: Good morning again. This is Judge Lisa
3 Beckerman. Court is now in session.
4 I think, as our Zoom rules made clear, only parties
5 who are going to actually appear and make formal appearances on
6 the record will need to have their video on. And obviously,
7 when you are speaking, you can turn on your audio. And when
8 you're not, I'd appreciate if you'd mute it.
9 I'm going to go ahead and call the case, and then I
10 will ask the attorneys for appearances. And obviously, when
11 you're also speaking again later on, I would appreciate if
12 you'd also identify yourself for the record again at that time.
13 Thank you.
14 So we have case number 21-11051, Kumtor Gold Company
15 CSJC and related debtor. May I ask for appearances, please, of
16 counsel.
17 MR. BROMLEY: Good morning, Judge Beckerman. It's Jim
18 Bromley of Sullivan & Cromwell. It's a pleasure to be here
19 before you today. I am acting as counsel for -- proposed
20 counsel for the debtors, Kumtor Gold Company and Kumtor
21 Operating Company.
22 MR. MINTZ: Good morning, Your Honor. I'm Benjamin
23 Mintz from Arnold & Porter. I'm appearing today on behalf of
24 the Kyrgyz Republic, along with Seth Kleinman from my firm.
25 And there are others who are appearing but do not have their
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1 video on as well.
2 As an initial matter, I just want to note for the
3 record that my appearance and my firm's appearance here today
4 shall not constitute a waiver of any rights, privileges, or
5 immunities to which the Kyrgyz Republic is entitled under
6 international and domestic law, including pursuant to the
7 Foreign Sovereign Immunities Act of 1976. Thank you, Your
8 Honor.
9 MS. SCHWARTZ: Good morning, Your Honor, Andrea
10 Schwartz for the United States Trustee. With me is my
11 colleague, Shara Cornell.
12 THE COURT: Thank you, Ms. Schwartz.
13 Is there anyone else who would be appearing for the
14 record?
15 Okay. Mr. Bromley, I believe it is your agenda. I'm
16 guessing you probably want to do some kind of background
17 discussion first and then get into the agenda, perhaps, in
18 order. Is that what you had in mind?
19 MR. BROMLEY: Yes, it is, Your Honor.
20 THE COURT: Okay, all right. So the floor is yours
21 and Mr. -- and your colleague as well.
22 MR. BROMLEY: Thank you, Your Honor. Yes, I do have
23 one colleague on; Christian Jensen is also on. He will be
24 controlling a slide presentation which we filed with the Court
25 last night.
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1 Before I get there, Your Honor, however, let me just
2 thank you, first of all, for accommodating us this morning and
3 for your staff helping us so nicely over the past few days. We
4 did file the case on an emergency basis last week, and so it's
5 been a bit of a race to get everything accomplished, and we do
6 appreciate the accommodations.
7 With that, Your Honor, I think it's worthwhile to give
8 a little bit of background. We do have our first-day
9 declaration, which we filed on Friday. We have with us,
10 present on the Zoom call as well, Daniel Desjardins, who is the
11 first-day declarant. I will go through the declaration in some
12 detail.
13 But first let me give a little bit of context and
14 background. We are here with a solvent debtor, a solvent
15 debtor case. Kumtor Gold and Kumtor Operating are two debtors
16 that operate a gold mine, a gold mine in the Kyrgyz Republic.
17 It is a unique property. It is a property that is located at
18 over 4,000 meters above sea level. That's over 13,000 feet.
19 This is one of the highest mines, if not the highest mine in
20 the world. And the operation of the mine is a logistical and
21 technical miracle in many ways.
22 This mine is the product of over thirty years of
23 careful and cooperative and safe operation that took place
24 beginning with the fall of the Soviet Union. The first
25 commercial operation began in 1997. And this company, this
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1 mine has been profitable, profitable for its owners, profitable
2 for the Kyrgyz Republic, profitable for its employees and its
3 creditors, throughout that period, and remains so.
4 The only reason we're here today, Your Honor, is as a
5 result of an illegal expropriation event that took place in the
6 last couple of months, particularly in May of 2021, that took
7 place in the Kyrgyz Republic under the direction of a new
8 regime that came into play this year.
9 What we have, Your Honor, is a critical situation with
10 respect to the two debtors, and this is a situation where we
11 are obviously here in New York. We are not sitting in the
12 Kyrgyz Republic. But this is a project that has been connected
13 with New York, the State of New York and the City of New York,
14 for over three decades. All of the critical documentation
15 relating to this was negotiated here in New York. Most of the
16 critical documentation is governed by New York law, and
17 critically, as we will go through when we go into the details
18 of the declaration, the proceeds of the gold sales have always
19 run through New York City.
20 The connection of this entity to the international
21 financial system, and in particular the New York financial
22 system, is not just something that popped out of the sky a
23 couple of weeks ago in order to obtain jurisdiction. This has
24 been happening and going on for decades. The bank account that
25 has been used has been in place for over thirteen years with
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1 HSBC Bank here in New York. And hundreds of millions, if not
2 billions of dollars of proceeds related to gold sales have
3 flowed through that bank account.
4 Indeed, one of the issues that we raised is that the
5 most recent twenty-nine-million-dollar payment, which was
6 supposed to be made within the last thirty days, was
7 intercepted. It has not been made. We don't know where it is.
8 We do know and have evidence that it was attempted at Kyrgyz
9 Republic, through its controlled entity, Kyrgyzstan, to
10 redirect that money to a different bank account.
11 So what we have here, Your Honor, is a longstanding
12 voluntary submission to the jurisdiction of the New York laws
13 and the New York courts by the Kyrgyz Republic by its
14 instrumentalities. And while I understand Mr. Mintz's cautions
15 with respect to his appearance, we, as the debtors, also
16 reserve all of our rights with respect to the Kyrgyz Republic,
17 and note very well his appearance here today, and believe that,
18 with respect to everything that's going on, that it's nice to
19 see him in a court where there's actually a jurist in place
20 where we can make our arguments and be heard, which is not the
21 case in the Kyrgyz Republic.
22 So with that, Your Honor, let me go through the
23 declaration. And as I said, Mr. Desjardins is here and
24 available for cross-examination. It is a detailed story, but I
25 think it's worthwhile that we bring up our slides, as well, as
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1 we can go through and give the Court a little bit of context.
2 So we have two debtors, Your Honor. They are Kumtor
3 Gold Company CSJC, which is a closed joint stock company under
4 Kyrgyz law, and Kumtor Operating Company CSJ. Right now KOC --
5 and I will use the abbreviations KGC and KOC -- KOC is
6 effectively a dormant entity. KGC operates the mine and is the
7 direct owner of the mine.
8 The fact that there are these two entities is really a
9 remnant of the documentation, and there's no real operations
10 with respect to KOC, but they are a debtor because they are
11 parties to some of the critical documentation.
12 The headquarters of the debtors is located in Bishkek,
13 which is the capital and the largest city in the Kyrgyz
14 Republic. And the Kyrgyz Republic is located in Central Asia.
15 It is bordered by China. And indeed, the mine is very close to
16 the border of China. And it is a former member of the USSR.
17 The Kirghiz Soviet Socialist Republic was part of the USSR, and
18 in 1991, in August, declared its independence.
19 The principal business of the debtors is to operate
20 the Kumtor gold mine. And as I mentioned, Your Honor, the
21 Kumtor gold mine is located at 4,000 feet above sea level. It
22 is not just in a glacier field; it is surrounded by glaciers.
23 And certain of the allegations that Kyrgyz Republic have made
24 with respect to environmental issues raised issues relating to
25 the glaciers.
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1 The fact is, Your Honor, that the mine was -- the
2 glaciers were there when the mine was built. It was with the
3 knowledge that the glaciers were there that the Kyrgyz Republic
4 needed to go outside of the Kyrgyz Republic to find
5 international assistance in terms of the technological
6 expertise that would be necessary to mine the gold there.
7 And here is a picture on the slide that shows you the
8 idea of what the gold mine looks like. It is so high that many
9 of the employees must wear oxygen masks and tanks while they're
10 working there. And it has been open and operating since 1996.
11 Between 1997 and 2020 over 13.2 million ounces of gold have
12 been obtained through the Kumtor gold mine.
13 Now, each of the debtors is one-hundred percent owned
14 by Centerra Gold. Centerra Gold is a publicly-traded company
15 located in Toronto, Canada. The assets of Centerra Gold are
16 mining interests around the world, including in Turkey, Canada,
17 as well as in the Kyrgyz Republic. It is a publicly-traded
18 company, as I mentioned. The shares are listed on the Toronto
19 Stock Exchange, as well as the New York Stock Exchange. They
20 are governed by the Ontario Securities Commission as well as
21 the SEC as a foreign issuer.
22 Now, going to the gold mine itself, there are nearly
23 3,000 full-time employees located at the mine. There are
24 additional staff that are contract staff of over 1,200. So
25 over 4,000 people are employed directly by the mine, either as
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1 employees of the debtors or contract staff. This does not take
2 into account, Your Honor, the large number of people who are
3 also indirectly employed, because of the existence of the mine,
4 through vendors, creditors and the like. It is a very large
5 and substantial operation.
6 Now, let me take you through the gold mining process,
7 because I think this is an important set of descriptions,
8 because some of the issues that have come up later deal with
9 how the gold is mined. This is not my first gold mining case,
10 but it's been a while since I was involved in mine. And I do
11 remember, when I first got involved, that the way that gold was
12 mined struck me as somewhat different than what you might see
13 on TV or the like.
14 What you do here is -- there's several steps that are
15 critical to this. And you can see these are all pictures at
16 the mine site. The equipment that is used is enormous. It's
17 highly complicated. And every year, when the company is
18 setting out what's going to do for the year, it puts together
19 what is known as a mine plan. That mine plan is filed with
20 several authorities within the Kyrgyz Republic. Only when
21 those authorities review and sign off on the mine plan does the
22 process begin. And it is a very detailed set of plans, in that
23 it describes, on a day-to-day basis, over the course of an
24 entire year, what is going to be mined, how much is going to be
25 mined on a particular day, and where within the mine site is
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1 going to be mined.
2 The first step is drilling. Drilling is used to
3 determine the amount of gold that is in a particular section.
4 Boring rigs are used and can go down to up to twelve meters,
5 and a 1,000 holes, on average, are drilled during any
6 particular shift. Once these holes are drilled, explosives
7 are put within the holes, and blasting is used to break up the
8 large sheets of rock. And geologists on the site decide which
9 of these areas should be blasted and which should not.
10 Now, once the blasting takes place, excavators, large
11 dump trucks and large front-end loaders, come and put the
12 blasted rock into the trucks. Waste rock is taken away to
13 designated waste rock dump locations and the gold ore is taken
14 to a mill.
15 And then what happens is the gold is then extracted
16 from the rock. The gold extraction process is complicated.
17 And the first is that it's delivered to crush -- the gold is
18 mixed in with rock. The rock is crushed, and then the gold is
19 extracted from the crushed rock. So as you can see here, the
20 crushers are so sensitive that they grind the ore down to one-
21 fifth of the diameter of a human hair. This is all happening
22 out at the mine site.
23 Then at the factory, a weak cyanide solution and
24 activated carbon are added to the powder. And this creates a
25 mixed slurry. The slurry passes through tanks. The gold is
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1 dissolved. The gold then binds with the carbon in the
2 solution. The solution is then separated -- the carbon is then
3 separated from the solution, and the gold is stripped from the
4 carbon using various chemicals.
5 Then through this process of electrowinning, electric
6 current passes through the gold solution, causing the gold to
7 bind with steel wool located in the chamber, and once the gold
8 binds, it's melted into what are known as dore bars. And then
9 those dore bars are sold to the gold refinery. So the output
10 at the mine, effectively, is this this product called dore,
11 gold dore. And that's an unrefined gold product with a purity
12 that varies sometimes between seventy and eighty percent pure
13 gold.
14 Now, that's how the process works. The documentation
15 relating to the project is very carefully structured about how
16 that gold dore, which is the only output of the mine, is then
17 sold into the market. So from the very beginning, the gold
18 dore produced at the mine is purchased by a company, a company
19 that is owned and controlled and is the alter ego the Kyrgyz
20 Republic. That entity is called Kyrgyzaltyn JSC. We'll just
21 refer to it as Kyrgyzaltyn. It's a name you'll hear a lot,
22 Your Honor, and we'll come back to it. This is a gold refining
23 monopoly. It's wholly owned and controlled by the Kyrgyz
24 Republic.
25 The contracts require that Kyrgyzaltyn then sells the
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1 refined gold through StoneX Financial. StoneX is a recognized
2 dealer in minerals and metals. It is an international company
3 that operates around the world. It is the sole and exclusive
4 gold offtaker of Kyrgyzaltyn. So in theory, what we're talking
5 about is the gold dore is created at the mine, the dore is
6 taken by Kyrgyzaltyn and refined into pure gold. Kyrgyzaltyn
7 then sells that, through StoneX, into the world markets.
8 And over the course of the relationship of the
9 parties, this has been the subject of what is known as offtake
10 agreement, the gold being the offtake. Right now we're
11 operating under, or had been until the expropriation event,
12 operating under a restated gold and silver sale agreement.
13 That's the offtake agreement dated June 9, 2009. And the
14 parties to that are the debtors as well as Kyrgyzaltyn and the
15 Kyrgyz government.
16 Again, the sale process requires that all proceeds
17 from the gold sales, every single dollar that are payable to
18 the debtor, KGC, must be deposited in KGC's New York bank
19 account. And that has taken place throughout the process, all
20 through these years, until last month.
21 This slide, Your Honor, is just a description of
22 exactly what I've described, the Kumtor mine, the gold dore,
23 and the money going through into the New York bank account.
24 Now, Your Honor, the business environment in the
25 Kyrgyz Republic has been uneven, to put it politely, over the
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1 course of the thirty-year relationship that has been in place
2 with respect to the Kumtor mine. There have, undoubtedly, been
3 ups and downs with respect to the Kyrgyz government. There
4 have been several coups. Several presidents have left the
5 country involuntarily, and there have been at least two
6 disruptions which have been characterized within the country as
7 revolutions. This unsettled nature has continued and
8 accelerated in the past year.
9 In October of 2020, things began to move a little more
10 quickly. Sadyr Japarov, who is now the president of the
11 Republic, was in jail. He was in jail for attempted kidnapping
12 and hostage taking that had taken place in connection with
13 protests relating to the Kumtor mine.
14 Mr. Japarov had made it very clear that his view was
15 that the Kumtor mine should be nationalized, it should be
16 expropriated, it should be the sole asset of the Kyrgyz
17 Republic. And his political elections and efforts were solely
18 focused on that.
19 He was, under a prior government, arrested, tried, and
20 convicted, and jailed. Very abruptly, in October of 2020, his
21 conviction was overturned, and within a couple of weeks, he was
22 the interim president of the Kyrgyz Republic.
23 An election was scheduled for January. That election
24 took place. He was elected. Since his election, he has
25 significantly expanded his presidential powers. And over the
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1 past several weeks, in particular, there have been widespread
2 arrests of former Kyrgyz Republic officials relating to their
3 dealings at the coal mine -- I mean, the gold mine, sorry, Your
4 Honor.
5 The U.S. State Department has made -- as it does, it
6 takes an annual review of business climates around the world.
7 And the quote on the next page, Your Honor, is from the U.S.
8 Department of State 2020 Investment Climate Statement that
9 corruption continues to be a major constraint to business
10 development, particularly in the state, customs, and border
11 agencies.
12 It also notes that -- this is the U.S. State
13 Department -- that the Kyrgyz judicial system is not fully
14 independent and susceptible to external political influence.
15 It ends with saying that the legal and regulatory framework,
16 while set up to be in accordance with international norms,
17 suffers from poor implementation and weak enforcement. It is
18 an endemic problem. There are similar statements out there
19 from other international oversight, including the CIA.
20 So Your Honor, I'll turn now to some things that are
21 also contained within Mr. Desjardins' declaration. And I'll
22 note that Mr. Desjardins is present and able to testify, if so
23 called. And we will offer his declaration into evidence. I
24 think maybe at this point we might as well offer it in, with
25 parties having the right to cross-examine.
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1 THE COURT: Okay, Mr. Bromley, just a second.
2 So does anyone have any objection to Mr. Desjardins'
3 declaration being admitted into evidence?
4 MR. MINTZ: Your Honor, Benjamin Mintz. I do have an
5 objection, Your Honor, and at an appropriate time, I want to be
6 able to present the Court with, kind of, broad concerns about
7 this case.
8 But briefly, with respect to the declaration and its
9 proposed admission, we do not believe Mr. Desjardins is
10 authorized as a representative on behalf of the debtor. As Mr.
11 Bromley has acknowledged, there was an expropriation event,
12 that he characterizes as illegal, and we can debate the
13 characterization of it, but I think both parties agree that
14 actions have been taken in the Kyrgyz Republic, through its
15 legislature, that has altered the control and the responsible
16 parties for the debtor.
17 And Mr. Desjardins is no longer an authorized
18 representative who can speak on behalf of the debtor. And
19 accordingly, we would submit, it's not appropriate to accept
20 the declaration that is not on behalf of an authorized
21 representative.
22 THE COURT: Mr. Bromley, my understanding is that Mr.
23 Desjardins is a director of the debtor?
24 MR. BROMLEY: That's correct, Your Honor.
25 THE COURT: Okay, Mr. Mintz, I'm going to go ahead and
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1 admit the declaration into evidence. I do believe he's an
2 authorized representative. He may not be the person running
3 the mine at the moment. I understand that there's been a
4 temporary manager appointed. But for purposes of being able to
5 represent the corporation in court, as you know, it's not
6 uncommon for anybody who's actually an authorized officer or a
7 director, under applicable law, to be able to do that.
8 I have no evidence that, through the proper corporate
9 process, Mr. Desjardins has been eliminated as a director. And
10 so my understanding is he is currently a director. So I am
11 going to go ahead and admit his declaration into evidence.
12 Obviously, you have the right to cross-examine him.
13 (Declaration of Mr. Desjardins was hereby received into
14 evidence as of this date.)
15 MR. BROMLEY: Well, thank you, Your Honor. I'll
16 proceed then on the assumption that if Mr. Mintz has any
17 questions for Mr. Desjardins we can deal with that at the end
18 of the presentation. We will, of course, reserve our right for
19 redirect.
20 So Your Honor, as set forth in the declaration, the
21 historical relationship between the debtors and the Kyrgyz
22 government dates back to 1992. Centerra's predecessor was a
23 company known as Cameco, a company that still exists. And just
24 as a frame of reference, Centerra was eventually spun out of
25 Cameco, in part, to provide the Kyrgyz government and
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1 Kyrgyzaltyn, its controlled entity, with a way to monetize its
2 interest in the mine.
3 But back in 1992, when the original concession was
4 being marketed by the Kyrgyz government, the corporate entity
5 in Canada that was in control of that exercise was Cameco.
6 Centerra did not exist at that point but, as I said, was
7 eventually spun out.
8 The award of the concession was in 1992, and it was a
9 right to evaluate and develop the Kumtor mine. As noted, the
10 mine was in a very challenging physical location and presented
11 very substantial technical issues in terms of being able to
12 develop the mine into a commercial operation.
13 That operation reached commercial production in 1996,
14 and then into 1997 really, for the first time, produced
15 substantial gold. The original concession agreements and
16 related documentation remained in place from 1992 until around
17 2002, and this is when the first restructuring took place.
18 Cameco, at the time, and Kyrgyzaltyn entered into a
19 series of agreements. And what, at that time, had happened --
20 the structure at that time had the Kyrgyz government, through
21 Kyrgyzaltyn, owning a direct interest in KGC. So they owned a
22 direct interest in the mine-owning entity.
23 In 2002, there was a restructuring, first
24 restructuring, and this was effectively to allow the Kyrgyz
25 government, through Kyrgyzaltyn, to elevate its ownership
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1 interest in the mine from a relatively illiquid ownership
2 interest, in an entity that was controlled by a publicly-traded
3 company, in that case, Cameco, into a public -- interest in a
4 publicly-traded company that, in turn, owned the mine.
5 So it was in 2002 that you had the spinout
6 transaction. So instead of owning a portion of the mine, the
7 Kyrgyz government, through Kyrgyzaltyn, owned thirty-three-and-
8 a-third percent of Centerra. Centerra was created as a new
9 entity, at the time, and then spun out to the shareholders of
10 Cameco as well as to Kyrgyzaltyn.
11 So that was a watershed event, a clearly commercial
12 event, in which the Kyrgyz government, through Kyrgyzaltyn, was
13 able to sell substantial amounts of equity that they held in
14 the mine, in the public market, and the equity that they held
15 in the mine, having been transferred into the equity of
16 Centerra, allowed them to own -- not only liquidate that
17 ownership interest, to a certain extent, but as for the
18 remaining ownership interest, hold a publicly-traded security
19 rather than the ownership interest in the mine itself.
20 So that was the first restructuring. The second
21 restructuring took place in 2007, but actually was never
22 consummated. In 2007, the Kyrgyz parliament began to consider
23 a series of legislative changes, looking to change the
24 fundamental nature of the Kumtor mine concession. These were
25 things that were being considered that Centerra did not believe
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1 were appropriate, under the governing documentation, and there
2 was a fair amount of back and forth.
3 Eventually, the Kyrgyz government, at the time, and
4 Centerra did agree to a set of restructuring constructs. That
5 was then presented to the Kyrgyz parliament, which did not act
6 on it. So the second restructuring, in 2007, did not actually
7 come to fruition. So the second restructuring is more of an
8 aborted restructuring as well.
9 The third restructuring in 2009 actually did take
10 place. There continued, through that period, through 2007,
11 '08, and '09, discussions between the Republic, Kyrgyzaltyn,
12 its controlled entity, and Cameco, which still owned a
13 substantial amount of Centerra. And this resulted in
14 substantial documentation and the third restructuring.
15 There was something known as the restated investment
16 agreement, that was entered into in June 6, 2009, as well as an
17 agreement known as the "New Terms for the Kumtor Project" that
18 was dated on April 24, 2009. While the documents are very
19 long, the major points were that the mine concession area was
20 increased. The tax regime within the Kyrgyz Republic,
21 applicable to the Kumtor mine, was simplified and, in
22 particular, with respect to intercompany transactions.
23 And most importantly, Kyrgyz laws applicable to the
24 mine were stabilized, was the term of art that was used, which
25 meant that the laws relating to the Kumtor mine that were
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1 embodied within these documents became the governing law. And
2 there were representations made, consistently throughout the
3 documents on which the parties relied, that the laws within the
4 Kyrgyz Republic would not be changed in any way unless the
5 underlying documents themselves were changed.
6 And most importantly, these agreements are governed by
7 New York law. These agreements were negotiated in the context
8 of enforcement within the State of New York. There is an
9 arbitration provision for international arbitration, but that
10 arbitration would be done in the context of the laws of the
11 State of New York.
12 And now we're coming to the point where there are
13 certain of the documentation, that's still in effect, as to
14 which substantial violations have occurred. The fourth
15 restructuring is -- so the third restructuring was 2009, so a
16 period of seven or eight years go by, and then there's a fourth
17 restructuring in connection with further regime change within
18 the Kyrgyz Republic.
19 This got a little dicey. In 2014, the Kyrgyz Republic
20 issued what is known as an Interpol Red Notice. That's
21 effectively an international arrest warrant. And that Red
22 Notice was issued calling for the arrest of Centerra's former
23 chief executive officer alleging "involvement in corruption".
24 And the corruption was the negotiation of the 2009 documents,
25 so the ones that constituted the third restructuring -- we're
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1 now seven or eight years later -- being alleged by the then in-
2 control government in the Kyrgyz Republic as having been
3 corrupt. And therefore they were arguing that the people at
4 Centerra, who were involved in that, including those who were
5 running the mine, the KGC managers, were being investigated.
6 It got so bad that this Red Notice was issued, and the
7 former CEO was arrested while on a holiday trip in Bulgaria,
8 and was detained in Bulgaria for several months before the
9 Bulgarian government decided that the Kyrgyz Republic did not
10 have any basis for extradition.
11 But obviously, what has happened that changed the
12 dynamic severely was, also in 2014, that the government in the
13 Kyrgyz Republic filed criminal cases against several KGC
14 managers and prevented managers from leaving the Kyrgyz
15 Republic.
16 This continued over a course of several years, and in
17 2016, Kyrgyz authorities filed claims against the debtors, KGC
18 and KOC, in Kyrgyz courts, alleging environmental damages.
19 That's important to note because the current pretext relates to
20 environmental damages, the same environmental damages.
21 Now, to preview those same environmental damages, this
22 fourth restructuring led to a complete and total release of all
23 of those claims. They have been resurrected, just in the past
24 couple of months, notwithstanding the implementation of what
25 did become the fourth restructuring.
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1 So if we could just go back one slide. So what we --
2 yes, that one. So in May 2016, a Kyrgyz court issued orders
3 against KGC and KOC, the two debtors, purporting to award over
4 300 million dollars to the Kyrgyz government. And the parties
5 sat down and entered into a comprehensive settlement agreement.
6 The settlement agreement entered into in September of
7 2017 is known as the "Strategic Agreement on Environmental
8 Protection and Investment Promotion". It was entered into on
9 September 11th 2017. That agreement provides full releases and
10 resolution of all then existing arbitral and environmental
11 claims, all disputes, proceedings, court orders. It is a
12 blanket U.S.-style, full and complete release. It is also a
13 contract that is, again, governed by New York law.
14 So fast forward again, Your Honor. We thought
15 everything had been settled. Again, this is a mine that,
16 throughout this period of time, had operated in complete
17 compliance with all local and international norms. It has been
18 a profitable enterprise, both for its shareholders, which oddly
19 enough, also include the Kyrgyz government, as well as in terms
20 of paying its taxes, paying its employees, providing direct and
21 indirect employment for thousands of people in the Kyrgyz
22 Republic. Never once was there any issue in terms of this mine
23 operation ever being insolvent or unable to satisfy any of its
24 obligations, whether environmental, legal, or otherwise.
25 What happened in the past few months that precipitated
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1 this Chapter 11 filing? Well, as I noted, when President
2 Japarov was elected, in January of 2021, one of the first
3 things that happened was, in February 2021, the parliament
4 formed a commission, a new commission to study the
5 "effectiveness of the Kumtor mine activities".
6 On April 30th, this commission introduced legislation
7 that would allow the government to take control of the mine.
8 The claim that precipitated this was that KGC sought to shut
9 down safety monitoring and operational systems. This is
10 absolutely incorrect. The debtors did not do anything to
11 disable any systems. The mine operated at all times, and as
12 far as we know, continues to operate without incident.
13 This law was passed on May 6th, 2021. This is an
14 important date because, as the next slide will indicate, that
15 is the day before the entry of a three-billion-dollar judgment
16 against the debtors.
17 Now, in March of 2021, a lawsuit was filed,
18 effectively, on behalf of the Kyrgyz government. There were
19 four individuals who filed that lawsuit, and the Kyrgyz
20 government knew about it and was comfortable with it. They
21 sought financial sanctions with respect to environmental
22 damage. They did not specify a dollar amount at that point.
23 All the claims that they were pursuing under that lawsuit had
24 been released under the 2017 agreement.
25 On May 3rd of 2021, that complaint was amended. They
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1 finally said how much the claims were. They claimed over three
2 billion dollars. On May 7th, four days later, the Kyrgyz court
3 ruled for the plaintiffs and granted a judgment in the full
4 amount of the claim, a claim that had only been made four days
5 earlier. KGC, the debtor, the operator of the mine, was denied
6 the ability to present any defense before the Kyrgyz court.
7 At the same time, remember, a day earlier, May 6th,
8 the legislature had passed a law that effectively allowed the
9 seizure and taking of control of the mine.
10 Kyrgyz state tax service, also at the same time,
11 decided to reassert a billion dollars' worth of claims that had
12 been previously withdrawn. As a result of all this, KGC, KOC,
13 and Centerra all filed for arbitration, as they have a right to
14 under the operative documents. That filing took place on May
15 14th of 2021.
16 On May 15th, the government seized computers of the
17 KGC senior management and effectively took control of the mine.
18 And then they appointed Tengiz Bolturuk, whose photograph is
19 here on the slide. He had been a director of Centerra,
20 appointed to the board as a representative of Kyrgyzaltyn. He
21 resigned from the board. He is now the temporary manager
22 relating to the mine.
23 Centerra immediately took legal action in Ontario --
24 again, Centerra is a Canadian company, organized under the laws
25 of Canada, traded on the New York and Toronto stock
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1 exchanges -- and sought a preliminary injunction in the Ontario
2 Superior Court of Justice against Mr. Bolturuk based on
3 breaches of fiduciary duty and breaches of confidentiality that
4 he owed to Centerra. It is the view of the debtors, as well as
5 Centerra, that Mr. Bolturuk used his information, gained as a
6 result of being a member of the Board of Centerra, to help the
7 Kyrgyz government and Kyrgyzaltyn take control of the mine.
8 The Ontario court has issued a preliminary injunction.
9 Mr. Bolturuk is now barred from having any involvement,
10 directly or indirectly, with the management or control of the
11 Kumtor mine, pending a further order of the court. A hearing
12 was held -- that was effectively a TRO. A hearing was held
13 last Friday on June 4th. The court decided to keep the
14 preliminary injunction in place pending any briefing on the
15 issues. Based on the best information the debtors have, Mr.
16 Bolturuk continues to act as the temporary manager, despite the
17 Canadian court's preliminary injunction.
18 Now, Your Honor, earlier in the presentation, I
19 mentioned to you that there is -- I mentioned, Your Honor, that
20 Kyrgyzaltyn had attempted to defraud KGC with respect to
21 twenty-nine million dollars in gold sale proceeds. So as I
22 mentioned earlier, all if the documentation clearly provides
23 that, as the gold dore is purchased, it is then refined, it is
24 sold to StoneX Financial as the sole gold offtaker. And
25 payments are made, roughly once or twice a month, into the New
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1 York bank account.
2 On May 7th of 2021, the debtors and Kyrgyzaltyn, as
3 they do every month, signed an order that would make it clear
4 that twenty-nine million dollars was to be delivered to the New
5 York bank account as a result of gold that was to be delivered
6 by Kyrgyzaltyn.
7 The debtors discovered that on May 12th Kyrgyzaltyn
8 offered a forged payment order and attempted to direct StoneX
9 to deposit proceeds of the sale into a different bank account
10 without the debtors' authorization. At this point, Your Honor,
11 we are not entirely clear as to whether or not that payment was
12 made to a different bank account. But we will be looking for
13 your assistance in tracking down the information to make sure
14 we understand what happened with that twenty-nine million
15 dollars.
16 If we could just go to the next slide. Oh, that is
17 the last slide. Sorry. So there we are, Your Honor. That
18 kind of brings us up to where we are today. As a result of all
19 of these issues that we have described, the debtors, together
20 with their shareholder, have been aggressively evaluating their
21 options for dealing with this illegal expropriation event.
22 And as a result of the exercise here, what we have is
23 a multi-front approach. Right now, there is litigation that's
24 been commenced in Canada against Mr. Bolturuk, and that
25 litigation is proceeding. There's an arbitration that has been
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1 commenced pursuant to the terms of the governing documentation.
2 That arbitration will take place in Stockholm pursuant to
3 (indiscernible) rules. That arbitration, for the time being,
4 is to deal with the issues that have been alleged with respect
5 to the environmental claims, the three-billion-dollar claim
6 that the Kyrgyz court has purported to enter against the
7 debtors.
8 To date, there's been no attempt to do anything, as
9 far as we know, in Kyrgyz Republic, with respect to the
10 debtors, other than to operate the mine in accordance with what
11 we believe to be the existing mine plan. The debtors, though,
12 are very concerned that Mr. Bolturuk is not going to operate
13 the mine in a manner that is consistent with the prior
14 operating guidelines and that severe damage could take place to
15 the asset.
16 We also know that international creditors that have
17 been operating for years in good faith, in dealing with the
18 leadership of the mine, have not been paid. We are not clear
19 at the moment as to whether or not individuals on site who work
20 for the mine are being paid. We have some information that
21 there have been terminations, but we're not sure of whom, and
22 how, and how deep those terminations have taken place.
23 So Your Honor, we're here. We have two debtors who
24 have been active participants in the New York financial system,
25 accessing New York law, New York bank accounts for decades.
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1 And the Kyrgyz Republic, through its alter ego, Kyrgyzaltyn,
2 has appointed the temporary owner manager of the mine.
3 It is our goal, in commencing these Chapter 11
4 proceedings, to use the full power of Chapter 11 to make sure
5 that the expropriation event cannot be implemented on a
6 worldwide basis.
7 So I'll stop there, Your Honor and see if you have any
8 questions before I go into any of the specific relief that
9 we're looking for today.
10 THE COURT: I do have some questions. So thank you,
11 Mr. Bromley. I appreciate that presentation. And obviously, I
12 had read Mr. Desjardins' declaration and all the papers that
13 you submitted.
14 So I guess my question for you is, in the temporary
15 manager role, do you think that this constitutes a custodian
16 for purposes of 543? You know, is that where this is sort of
17 headed? I was trying to understand myself where this might go
18 because, while we certainly have the power of the U.S. courts
19 and worldwide automatic stay, and lots of things that we can
20 do, as you've pointed out, there's a lot of difficulty with
21 enforcing things outside of certain jurisdictions, even with
22 our court.
23 Certainly, if someone is before me, like I'm guessing
24 StoneX, for example, might have operations in New York, there
25 might be an ability for me to get records for you and do
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1 certain things. But I'm just trying to understand what are you
2 thinking that you're going to be bringing before me? Obviously
3 you noted a few things that also concern me, which is, normally
4 when we have a debtor, we obviously have issues about are there
5 payments of pre-petition debts? And you obviously don't know
6 if there is payments of pre-petition debts, if there is not
7 payments of pre-petition debts, what people are owed. So that
8 will also make it, as you would understand, more difficult to
9 handle some things here.
10 I know you have not filed those types of motions. I
11 understand maybe why, because you don't have the information,
12 it sounds like, to know whether you need that relief, but it
13 does cause some problems potentially.
14 So I guess I wanted to understand what your thinking
15 was here. There's obviously things that will be easier to do
16 here, and things that I can do here, but things that might not
17 be -- other places might not afford the same level of respect
18 for the order.
19 MR. BROMLEY: Very much understand that, Your Honor,
20 and if you saw the list of things that we've been considering,
21 you'd be happy that we haven't brought them all before you yet.
22 We're trying to --
23 THE COURT: Thank you. I've spent a lot of time
24 thinking about it myself, Mr. Bromley, and as I guess you can
25 imagine, with my years of experience before I took the bench,
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1 in doing things like you do and Mr. Mintz does, I have had a
2 lot of thoughts.
3 MR. BROMLEY: And so look, we're trying to be prudent
4 about that. We're not trying -- so what we did was -- our view
5 has been let's take this step by step. We've filed the cases.
6 We wanted to get the protection of the automatic stay. We have
7 carefully thought about what we need, from a first-day
8 perspective, and we've looked for very minimal relief at this
9 point. One of the things I'd like to keep on our calendar for
10 today's hearing is to talk about our second-day hearing and
11 what we might want to do in that context.
12 But you raise an interesting question with respect to
13 543 and the custodial relationship. At some level, yes, I
14 think that the temporary manager is a custodian and therefore
15 is completely responsible for anything that he does incorrectly
16 to damage the asset.
17 But we have not yet made any decision whether to seek
18 any relief with respect to 543. It's something that we are
19 considering. I'm glad the Kyrgyz Republic has appeared,
20 through Arnold & Porter, and I would simply advise it is not
21 easy to run that gold mine and that anything that is done in a
22 manner that is inconsistent with the operational norms, that
23 damages that gold mine, are obviously things that the Kyrgyz
24 Republic is going to have to be responsible for.
25 I think that Mr. Mintz's comment about the Foreign
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1 Sovereign Immunity Act is a classic knee-jerk reaction to it:
2 Of course, I'm sitting here representing a sovereign; I have
3 foreign sovereign immunity. Well, one of the major points of
4 foreign sovereign immunity is that you're not engaging in a
5 commercial activity. And when you have taken action to take a
6 thirty-year-old international commercial activity and
7 nationalize it, I think that the idea that you are acting in a
8 sovereign capacity, and entitled to foreign sovereign immunity
9 as a result of that action, is frankly laughable.
10 And so the idea that we're going to have to deal with
11 that at some point, I think, is clear. Mr. Mintz has raised
12 it; we will deal with it. And the fact that Kyrgyzaltyn is an
13 instrumentality of the Kyrgyz Republic, its alter ego, does not
14 provide any kind of barrier to making those sorts of arguments.
15 And the fact is, is that the way expropriation works
16 is if -- it's not all that different then eminent domain. If I
17 own a piece of property next to what became the Mario Cuomo
18 Bridge, and the State of New York says they need to build the
19 bridge abutment on my property, they have the right to come and
20 take that property from me, but they have to pay for it.
21 If what the Kyrgyz government is saying is we want
22 this gold mine, then one of the things Your Honor might need to
23 do is to figure out how much they need to pay for it. If they
24 want it, and they want to keep it, then that's something
25 completely different. But what you cannot do is create out of
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1 whole cloth or resurrect released claims, make an argument that
2 those claims, in your own court, are in amounts that you might
3 believe are in excess of the value of the property, and then
4 feel that you don't have any obligation with respect to
5 payments on an expropriation basis.
6 So I think, Your Honor, we're still working through
7 these things, the very basic things. I can say we're very
8 concerned about the twenty-nine million dollars that went
9 missing last month. It went missing, as far as we can tell, as
10 a result of actions in the Southern District of New York, and
11 we believe that you are well positioned to help us figure out
12 what happened there.
13 And if those amounts went missing because of actions
14 that were either directed by or approved by the Kyrgyz
15 Republic, whether through its alter ego, Kyrgyzaltyn, or on its
16 own, then we believe that we have the right to get that
17 information. That information is located here. StoneX, I know
18 is located here in New York as well.
19 And so this isn't the situation where we need relief
20 to operate the mine tomorrow. They've taken the mine. What we
21 need is relief that will help us find out what happened and to
22 prosecute our claims against the Kyrgyz Republic and
23 Kyrgyzaltyn to make sure that -- if you're thinking about the
24 assets that are located here in the United States, the assets
25 located here in the United States that are present and most
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1 actionable are the causes of action and the investigation that
2 would need to take place.
3 THE COURT: Okay. Well, that's helpful.
4 Okay. I guess, Mr. Mintz, I don't know when you would
5 like to have the opportunity to speak, if now is it, or you'd
6 like to wait till we start going through first-day motions,
7 because I think that would be the next thing, if you have
8 questions, you want to cross-examine Mr. Desjardins about. So
9 I'm not sure how you'd like to proceed here.
10 MR. MINTZ: I would like the opportunity now to
11 address the Court with some, kind of, broad concerns about the
12 case and I think are important to lay that groundwork before
13 Your Honor before we turn to the motions that are the subject
14 of today's hearing.
15 THE COURT: Okay. Ms. Schwartz --
16 MS. SCHWARTZ: Your Honor?
17 THE COURT: -- I see you are raising your hand.
18 MS. SCHWARTZ: Thank you so much, Your Honor. I just
19 wanted to let the Court know that I have another commitment at
20 11 o'clock. However, Ms. Cornell is on the call, and I have
21 gone through all the first-day motions with debtors' counsel.
22 There's only one outstanding modification that debtors' counsel
23 will make with respect to the Stretto application so that it
24 conforms with the protocol.
25 Ms. Cornell will be able to address any questions from
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1 the Court. I just wanted to jump in quickly, before Mr. Mintz
2 made his comments and so forth, just so -- I didn't anticipate
3 that the presentation would go for an hour before we got to it.
4 So I just wanted to let Your Honor know that, number
5 one, debtors' counsel has been completely cooperative with the
6 U.S. trustee, got us everything. We have spent several hours
7 discussing what Mr. Bromley has now discussed with the Court.
8 So I'm up on the gold dore and all of those things. And I just
9 wanted to respectfully request that I be excused at 11 o'clock.
10 And Ms. Cornell is on the phone for the U.S. trustee.
11 THE COURT: Yes, thanks. Thank you very much, Mr.
12 Schwartz. Of course, you are excused. And I appreciate the
13 fact that you and your office have been interfacing with Mr.
14 Bromley. It doesn't surprise me. Thank you.
15 Okay, Mr. Mintz, I think your turn to talk.
16 MR. MINTZ: Thank you, Your Honor, and I appreciate
17 the opportunity to address the Court. I think, following on
18 some of the questions Your Honor raised, I want to bring to
19 Your Honor's attention our view that there are threshold
20 questions regarding the debtors' ability to proceed with the
21 Chapter 11 cases. I alluded to this somewhat when I objected
22 to the admission of the Desjardins declaration. And we will
23 bring these issues in a formal motion to the Court. But they
24 are clearly important and central to how this case moves
25 forward in the near term and beyond that. And I think it's
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1 important to run through them for the Court today just so the
2 Court understands what issues we are going to be raising with
3 Your Honor in the very near future.
4 But before I touch on that, just a couple of
5 observations on some comments that Mr. Bromley made. The
6 debtors characterize what has happened as an illegal
7 expropriation event. That's verbiage that they have spun for
8 this Court. But there's no question that the parliament of
9 Kyrgyzstan passed the law, the law was implemented in
10 accordance with Kyrgyz law, and that the entities that are
11 before Your Honor, the two debtor entities, are both Kyrgyz
12 incorporated entities. Those are entities that are subject to
13 Kyrgyz law under the internal affairs doctrine. Their
14 governance is determined by Kyrgyz law and laws that have been
15 passed and in Kyrgyzstan, and those are what govern and
16 determine the governance and rights of the debtors as things
17 stand today.
18 The external manager has been delegated with all
19 authority for the company. It's not just control of the mine.
20 His role has effectively displaced the board and management.
21 And it's for that reason that I did object to the admission of
22 Mr. Desjardins' declaration, because he is not authorized to
23 act on behalf of the company, notwithstanding his title as
24 director. Under Kyrgyz law, the external manager has that
25 authority. And it's for that reason that that I submitted to
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1 the Court that it wasn't appropriate for Mr. Desjardins to
2 speak on behalf of the company.
3 As is acknowledged in the Desjardins declaration, and
4 as I mentioned, the debtors are Kyrgyz companies. They're
5 organized under Kyrgyz law, and virtually all of their assets
6 are located in Kyrgyzstan. The connections to the U.S. are
7 slim at best.
8 The bank account that has been referenced, we don't
9 know how much cash is currently in that account. We don't
10 believe it's very material. And while there is a choice of New
11 York law in certain of the contracts, there is no choice of a
12 New York forum. And I think that was implied by Mr. Bromley.
13 But that is certainly not the case. The forum selection is the
14 arbitration proceeding that's been initiated that is going to
15 go forward in Stockholm, Sweden.
16 The ties to the U.S. are -- I mean, they can't even be
17 identified because there are none. If you look at the list of
18 top thirty creditors, none of them are U.S. creditors. The
19 entire operations and business are obviously located in
20 Kyrgyzstan, and trying to argue that this Court and that the
21 U.S. court is an appropriate place to determine the affairs of
22 these debtors is a stretch, I think, under any reasonable sense
23 of how we think about U.S. bankruptcy law.
24 Of critical importance today, though, and to this case
25 going forward, is the purported representatives of the debtors
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1 that are here, as I mentioned, Mr. Desjardins, Sullivan &
2 Cromwell, they don't have the authority to represent or act on
3 behalf of the debtors. And that defeats the Court's ability to
4 move forward. And the law that I've referred to plainly
5 divests both the shareholders and the existing board from
6 exercising rights of management over the company. And neither
7 the petitions nor any of the filings made in this case were
8 authorized by the currently authorized representatives of the
9 debtor. So any requests for relief today are premature until
10 the Court resolves certain threshold questions.
11 And I think those questions I would outline as
12 follows: 1, where the petitions validly authorized under the
13 company's charters and Kyrgyz law for the Court to have any
14 ability to move forward, that determination needs to be made.
15 Are the purported representatives of the debtors, including Mr.
16 Desjardins and Sullivan & Cromwell, authorized to act on the
17 debtor's behalf in these cases. As I've alluded to, I think
18 the answer to that is no.
19 Beyond that, those threshold governance questions is,
20 should the Court hear these cases, should The Court abstain
21 from hearing these cases as a matter of international comity
22 and the debtors' inability, as a practical matter, to affect
23 and implement a plan of reorganization. As Your Honor has
24 alluded to, there are questions about what Your Honor will be
25 able to do in terms of ultimate relief. And that has to be a
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1 consideration in terms of thinking about the purposes and
2 practicalities of a case like this.
3 And then the fourth question I would ask and pose, is
4 this a legitimate restructuring matter or is this really a
5 two-party dispute that can be addressed as the parties have
6 agreed in the arbitration forum that that they've agreed upon
7 pursuant to their contracts. What is the purpose of this
8 bankruptcy case from a restructuring perspective? I think
9 that's been lost in the discussion for today.
10 So let me just briefly run through these issues just
11 to lay them out for Your Honor. And as I said, we do intend to
12 bring these as the subject of a formal motion. As
13 I mentioned, as a result of the Kyrgyz law, the
14 shareholders in the former board and management ceased to have
15 authority to act on behalf of the debtors. And Mr. Bolturuk,
16 the external manager, now has that authority. That renders the
17 resolutions that were attached to the petition ultra vires as a
18 matter of Kyrgyz law. And it means, as I've mentioned a few
19 times, that the representatives who are here today on behalf of
20 the debtors do not have the authority to act on their behalf.
21 Importantly, the resolutions -- and the
22 shareholders -- the shareholders who authorize the bankruptcy
23 filing did not comply with the requirements of the company's
24 charters. And I want to highlight a few things because I think
25 these are important.
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1 Among other things, certain board actions were
2 required to be undertaken before that petition could be
3 authorized, and that did not occur. And I don't think there's
4 any dispute that it did not occur. And then second, I would
5 highlight -- and I think this is an important provision to
6 focus on, the charters of these companies, of the debtor
7 companies, specifically provide that the reorganization and
8 liquidation of the company is to be done in accordance with
9 Kyrgyz law. So there's an express provision in each of the
10 debtors charters that says that the reorganization and
11 liquidation should be done in accordance with Kyrgyz law.
12 Obviously, this Court is not in a position to do that in a
13 reorganization.
14 To the extent that these companies are going to
15 proceed in that manner clearly have to be done under the terms
16 of the charter in Kyrgyzstan. So for that reason, that's a
17 second reason that would warrant dismissal because of the lack
18 of the corporate governance threshold determination that this
19 Court needs to make, that these petitions were properly
20 authorized in accordance with the company's charters in Kyrgyz
21 law. And I think for the reasons I've said, we will be able to
22 show that that hasn't occurred.
23 As I mentioned, principles of international comity are
24 going to warrant the abstention by this Court from hearing this
25 case. And as I -- as everybody acknowledges substantially, all
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1 of the assets, if not virtually all of them, are in Kyrgyzstan.
2 We've heard reference to this bank account. Not clear how much
3 money is in that bank account, but it's certainly not integral
4 to the operations of the assets and all the employees who are
5 located in Kyrgyzstan, the witnesses who are who are located
6 there, the creditors who are not here, who are primarily
7 located in Kyrgyzstan.
8 This is not a U.S. case. This is this is a case that
9 has the thinnest connections to the United States. The
10 references that Mr. Bromley made to the choice of New York law
11 in certain of the contracts is different from the question of
12 where the parties have elected for the litigation to go forward
13 in resolving their dispute. And as Mr. Bromley has
14 acknowledged, there's an international arbitration forum
15 selection. And that's going forward in Stockholm, Sweden. And
16 this Court and its involvement is not going to change that fact
17 at this point. That arbitration is the place that will
18 determine the amount of the claims and the parties' rights
19 under their contracts.
20 I mentioned the Foreign Sovereignty Immunities Act,
21 and I want to come back to that. That will constrain the
22 Court's ability to grant effective and enforceable relief
23 against the government of Kyrgyzstan as a practical matter.
24 While Section 106 of the Bankruptcy Code affects a waiver of
25 sovereign immunity in respect of certain code provisions, it
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1 notably does not include either Section 541 or 1129. So it's
2 hard to conceive how the Court would be able to confirm a plan
3 that is binding on the government of Kyrgyzstan in view of the
4 Foreign Sovereign Immunities Act.
5 To Mr. Bromley's point about whether this involves
6 commercial activity or not may be a question for a later day.
7 This certainly implicates the government's interest in the
8 glaciers and environmental concerns, which certainly go beyond
9 commercial activity. And in any event, none of the commercial
10 activity is in the United States. And accordingly, the FSIA
11 will apply to the types of issues that we're talking about
12 here.
13 Section 106 to the Bankruptcy Code also does not
14 encompass a waiver of enforcement rights. So that, too, as a
15 practical matter, is going to constrain this Court's ability to
16 effect meaningful relief. The entry of orders that that can't
17 be enforced as a practical matter is something that will be a
18 challenge in a case like this.
19 And then my last point, as I as I mentioned, this is a
20 two-party dispute. There's an available pending forum in an
21 arbitration proceeding in Stockholm that can adequately and
22 will be able to resolve the parties' disputes. That's where
23 the parties have agreed the claims should be adjudicated. And
24 when you consider that and the lack of a legitimate
25 restructuring purpose, none has been identified here. There is
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1 no legitimate restructuring purpose that that the debtors have
2 articulated. Those facts warrant dismissal or abstention in
3 the case.
4 And as I said, Your Honor, I recognize I'm making a
5 lot of argument today, and I do that because I think it's
6 important for Your Honor to appreciate what will be coming to
7 Your Honor. But I'm -- but I understand that I need to present
8 these issues in a formal motion, which we will do. I think for
9 today's purposes, I would ask that the Court consider deferring
10 the first-day motions. None are of critical need. There's no
11 irreparable harm, I think, that could be identified if these
12 first-day motions were deferred. That being said, I recognize
13 that that most of the first-day motions are administrative and
14 really don't affect any substantive relief.
15 I do have some comments on the -- and we would like
16 the opportunity to address the automatic stay motion, but I
17 think that would probably be better presented when that motion
18 is actually presented to Your Honor.
19 THE COURT: Okay. I understand. I actually have a
20 few comments on that motion as well, so we might even have some
21 of the same comments. It's possible, Mr. Mintz.
22 So I hear what you say, Mr. Mintz. But what I will
23 say to you is, obviously, unless there's something -- you're
24 going to have to file your motion, as you said, to dismiss.
25 I'm obviously not going to not move forward today without
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1 that -- having decided or even seen that motion. Unless
2 there's something about this law, and maybe you're going to
3 tell me when you file your motion to dismiss that that's true
4 and I have evidence of it, that demonstrates either of the
5 things you said, that either somehow it completely upends all
6 the things that are in the existing charter of the entity or
7 that the charter wasn't complied with, those are two
8 possibilities, that absent that, obviously, as you know,
9 someone who is a validly appointed director does have the
10 ability and the directors of the company just to sign a
11 resolution and do such a thing.
12 So it's going to have to be the subject of your motion
13 to dismiss explaining why that isn't authorized based on either
14 the law you mentioned or the actual language of the charter,
15 which I'm obviously going to have to see and don't have. So I
16 can't decide that one today. I'm not saying what you're saying
17 is impossible. It may very well be correct, but, obviously, I
18 don't have any of that evidence in front of me today. And as
19 you know, absent someone dissolving a corporation, there not
20 being properly elected directors to do this or something else
21 in the charter not permitting it or, in this case, perhaps some
22 other foreign law that governs the organization of the company
23 applying, there isn't any basis I have right now for not
24 allowing this to move forward. So I'm going to do that.
25 I expect your motion to dismiss and abstain. I
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1 understand. And there's obviously a lot of information that
2 will have to be provided to me, including documents, some of
3 the ones I've mentioned, in connection with that. And I think
4 that's really where we are today. And so I guess, Mr. Bromley,
5 my suggestion would be at this point that we go ahead and start
6 moving forward with the first-day motions.
7 MR. BROMLEY: Absolutely. Thank you, Your Honor. And
8 I won't respond to all of the points other than to say I
9 respectfully disagree with everything that Mr. Mintz said other
10 than his name and his firm.
11 And let's just go on to the first-day agenda. We
12 don't have much, Your Honor, as I said. We -- as Ms. Schwartz
13 mentioned before she signed off, we did have some conversations
14 over the past few days. There was one thing that came up right
15 before the hearing with respect to the application to retain
16 Stretto as the claims agent. We'd be --
17 THE COURT: I have one thing on that, too. And it
18 might be the same thing as her, I suspect.
19 MR. BROMLEY: Okay. Why don't why don't we -- the
20 first thing I'll say that noticeable, even though Stretto
21 hasn't been formally retained yet, all of the notices that were
22 sent out with respect to today's hearing and the motions were
23 sent out by Stretto. The certificate of service, as noted, is
24 located a docket number 12.
25 The first thing that we've asked for, Your Honor, is
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1 joint administration. That is item number 4 on the agenda.
2 It's at docket number 4. We propose that the two cases be
3 jointly consolidated under the caption of Kumtor Gold Company
4 CJSC to allow for an efficient administration of the cases. In
5 connection with that, we also seek authority to file our
6 monthly operating reports by consolidating the information. In
7 one report, we'll break out disbursements on a debtor-by-debtor
8 basis.
9 The Debtors are affiliates as defined under Section
10 1012 of the Bankruptcy Code. Each debtor is 100 percent owned
11 by Centerra Gold, Inc. And Rule 1015(b) provides that a joint
12 administration order is appropriate for debtor and the
13 affiliate. So unless Your Honor has any questions, we'd
14 respectfully ask that the joint administration order be
15 entered.
16 THE COURT: Okay. Mr. Mintz, I assume your prior
17 standing objection is applying to everything. So that's the
18 way I'm going to take it till we get to the automatic stay
19 motion, unless you have a different view on that now.
20 MR. MINTZ: No, that's correct, Your Honor. I don't
21 have anything additional to add on any of the motions except
22 for the automatic stay.
23 THE COURT: Okay, all right. So I've heard Mr.
24 Mintz's objection. I've heard Mr. Bromley's presentation.
25 I've read the motion that was filed. And I'm going to go ahead
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1 and grant it. So, Mr. Bromley, you just submit an order to our
2 chambers for that.
3 MR. BROMLEY: Thank you, Your Honor.
4 The next item is item number 5 on the agenda. It's
5 also item number 5 on the docket, which is the schedules
6 extension motion. We are requesting authority to extend the
7 time for the file schedules of assets and liabilities and the
8 various other schedules and lists by twenty days. So that's a
9 total of twenty-four days from petition date without the
10 debtors -- without prejudice to the debtors' ability to request
11 additional extensions or waivers.
12 As we've described in the motion, at the moment we do
13 not have complete access to all books and records that contain
14 the information necessary to prepare the schedules and
15 statements. And so we're asking for the additional time to
16 assemble what we do have. And we don't believe that this will
17 amount to any harm of creditors or any parties-in-interest.
18 So with that, Your Honor, we have, as I described,
19 discussed this with the Office of the U.S. Trustee's. And we
20 would ask that the Court enter the order.
21 THE COURT: Okay. And I've heard Mr. Mintz's standing
22 objection to this as well. And Mr. Bromley, I've obviously
23 heard your argument. I've read the papers myself. And I'm
24 going to go ahead and grant the extension. I obviously won't
25 be surprised if you seek a further extension because it sounds
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1 like we're going to be mired in some dismissal extension
2 litigation for a while. And that might make it more difficult.
3 But I understand. So I will go and grant the motion. You'll
4 have to submit an order to our chambers.
5 MR. BROMLEY: Thank you very much, Your Honor. We
6 will do so.
7 The next motion, Your Honor, is item number 6, docket
8 number 6. It's the creditor matrix motion. And by this
9 motion, it's our standard request to -- for authority to
10 maintain a consolidated creditor matrix, file a consolidated
11 list of top thirty creditors and approval of the form and the
12 manner of notifying creditors of the commencement of the
13 Chapter 11 cases. This is all standard operating procedure,
14 Your Honor. We reviewed it with the U.S. Trustee's Office.
15 We're happy to answer any questions or clarify anything if Your
16 Honor has any issues.
17 THE COURT: I don't. I've obviously read the motion.
18 And for the record, obviously, I've heard Mr. Mintz's standing
19 objection to this as well. And I'm going to overrule that.
20 And I'm going to go ahead and grant this motion. Mr. Bromley,
21 you'll just need to go ahead and submit an order to chambers
22 for this.
23 MR. BROMLEY: Thank you, Your Honor. We will do so.
24 The next item is item number 7 on the agenda and
25 docket number 7. It's the application for the appointment of
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1 Stretto as claims and noticing agent.
2 As noted, Your Honor, we have discussed with the U.S.
3 Trustee's Office about the one comment that they had. And I
4 know Your Honor mentioned you had a comment. So maybe if you
5 could just let us know if they're same comment. We might
6 already be there.
7 THE COURT: It relates to paragraph 10 which is the
8 limitation on liability provision.
9 MR. BROMLEY: It's exactly that, Your Honor.
10 THE COURT: That was my guess. Not surprising that
11 Ms. Cornell or Ms. Schwartz would raise that, because when I
12 looked at your order compared to what is standard in our
13 district, that is the one thing that jumped out at me and
14 our -- my clerks that was missing, which didn't surprise me
15 that the U.S. Trustee would catch it as well.
16 So you're going to put in language, I presume, saying
17 that notwithstanding this provision, that that's not
18 enforceable in the bankruptcy proceeding, something to that
19 effect.
20 MR. BROMLEY: Yes. We will make sure that it's
21 satisfactory to the U.S. Trustee's Office.
22 THE COURT: Okay.
23 MR. BROMLEY: And we'll let you know that as well.
24 THE COURT: Okay. All right. So, again, having heard
25 Mr. Mintz's standing objection to this, I guess, Ms. Cornell, I
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1 just want to make sure. Is there anything you want to be heard
2 on this before I rule on it?
3 MS. CORNELL: Thank you, Your Honor, Shara Cornell
4 with the Office of the United States Trustee.
5 No, Your Honor. Our issue was with also paragraph 10.
6 THE COURT: Okay, great. Thank you. Okay.
7 So, Mr. Bromley, having read the retention application
8 and with the discussion that we've had on the record and that
9 you had with U.S. Trustee's about amending that and modifying
10 the order to deal with that one provision, I'm going to go
11 ahead and grant the application, overruling Mr. Mintz's
12 standing objection. And you can submit a revised order to
13 chambers after you've obviously run it by Ms. Cornell.
14 MR. BROMLEY: Very good, Your Honor. We will do that.
15 Thank you.
16 That brings us to the last item on the agenda, which
17 is the automatic stay motion. That's item number 8 on the
18 agenda, docket number 8. And, Your Honor, this is the -- and I
19 know Mr. Mintz has raised the question about this. And you
20 have as well, Your Honor. Clearly what we have here is a
21 Chapter 11 proceeding which implicates foreign creditors and
22 foreign bodies. These automatic stay motions have been around
23 for quite a long time, certainly as long as I've been
24 practicing, and have always been sort of a basic building block
25 of cases that deal with non-U.S. entities.
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1 The automatic stay, as we all know, in the United
2 States is automatic. And Section 362 comes into play as soon
3 as the petition is filed, which is not consistent with the laws
4 dealing with creditor rights in most other jurisdictions where
5 moratoriums and creditor stays and the like are implemented
6 through a form of order that is entered by the applicable
7 court.
8 And so over the years, I think as American
9 practitioners, we have run into a lot of clients who have said,
10 well, wait a second, it's very hard for us to show somebody 175
11 of Colliers Code and say this is what it says, you need to
12 comply with it. And so what has built up over the years is
13 a -- I think a smart practice where we take the content of
14 Section 362 and put it in the form of an order so that it's
15 more recognizable as a legally binding application.
16 And so that's what we've done here, Your Honor. We
17 attempted to stay within the lanes of the standard operating
18 procedures. We use those models, the cases that we've seen in
19 the Southern District for the Latin American Airlines notices.
20 And so with that, we have -- it goes through the standard
21 litany of things, enforcing and restating global automatic
22 stay, focusing on ipso facto and antidiscrimination provisions,
23 directing courts of competent jurisdiction to take the
24 appropriate measures to recognize and enforce the Chapter 11
25 cases.
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1 And in my experience, what we're often doing here is
2 usually these in two ways. Right. One is to either provide it
3 to a counterparty who we think is not aware of the automatic
4 stay and may be in danger of violating it, frankly, without
5 thinking it through, or to use it in order to obtain
6 recognition of Chapter 11 proceeding under the model -- rule --
7 model law in other jurisdictions. So we obviously reserve the
8 right to use them in those ways. But I think that's -- for
9 right now, we think the primary purpose would be the first one,
10 which is to allow us to be able to tell counterparties who were
11 running into -- that there is an automatic say that the Chapter
12 11 has been commenced.
13 So we think there's ample justification in this in
14 this circumstance for the entry of an order like this. I would
15 note, obviously that Your Honor had said you might have
16 comments. So we would like to hear what your comment is. And
17 we also understand that Mr. Mintz has maybe an additional
18 objection to the one standing objection that's already raised.
19 THE COURT: Right. So I'm going to go ahead and give
20 my comments first, and then Mr. Mintz can raise his issues. I
21 might address one or two of his perhaps. Maybe not. I guess
22 we'll see.
23 So it's not what's in your order. It's what's not in
24 your order, I guess --
25 MR. BROMLEY: Okay.
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1 THE COURT: -- is really where my comments are. I
2 have three things that I traditionally like to see in these
3 orders. And there is precedent because I have had another case
4 like this that was international already in my three months
5 involving some of your former colleagues. And also this is
6 traditional from other precedent in the Southern District of
7 New York, not just mine.
8 So the first, which I'm sure you won't have any
9 objection to, it's just something that conflicts with the other
10 provisions of the Bankruptcy Code, is that I would like to have
11 a sentence in the order basically saying that the order is
12 immediately effective and enforceable notwithstanding the
13 possible application of 603(b) or otherwise, because I don't
14 think it helps you if there's an issue with that in your
15 enforceability against other parties. So that would be my
16 first statement. I'm sure that's not controversial with you.
17 MR. BROMLEY: Not at all.
18 THE COURT: Okay. But my second statement is that I
19 think that it has to have a provision in it saying that, on a
20 request of a party-in-interest and after notice in a hearing,
21 the Court may grant relief from the restraints imposed herein
22 in the event that it's necessary, appropriate or warranted to
23 so terminate, annul, or modify of condition the relief herein.
24 I guarantee you some of Mr. Mintz's requests are going to come
25 into that.
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1 And then my third point, which also might involve
2 something Mr. Mintz might raise, is the extent of the automatic
3 stay. So what I would like to see is some language that says
4 something like nothing to anything in the -- notwithstanding
5 anything to the contrary contained herein, this order shall not
6 be construed as enjoining or staying any act, it is not stayed,
7 or that is subject to an exception from the automatic stay
8 pursuant to the terms of 362 of the Bankruptcy Code.
9 I'm sure you understand where I'm getting at, because
10 there is -- there are issues here about governmental regulatory
11 actions and whether or not -- as you know, there is an
12 exception in the automatic stay for that. And whether or not
13 things fall into them or otherwise is an issue. But to the
14 extent there is anything that falls into that legitimately and
15 the Court ultimately determines that, determines that here, the
16 stay can go farther than, what 362 lets me do as you know.
17 So I would like to have that clarifying language in
18 place because here we do have an issue where somebody may be
19 asserting that. And whether or not that's valid or not will
20 ultimately be before me. But I do think there is an issue
21 about the fact that we do have governmental regulatory
22 authorities involved in this case already, whether there are --
23 in this case foreign. But it wouldn't matter. As you know,
24 from other matters we've dealt with before and prior to my
25 being on the bench. That doesn't matter whether governmental
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1 units are U.S. or foreign.
2 So, Mr. Mintz, you may have other things to mention,
3 but those were my comments.
4 MR. MINTZ: Thank you, Your Honor. Your comments are
5 helpful and, to a certain extent, address some of my concerns.
6 But I would go beyond what Your Honor articulated in
7 the sense that, as described, this is intended to be presented
8 to foreign creditors who don't understand the automatic stay,
9 and they can look at the order and understand how it applies to
10 them. I am here. I know what the automatic stay says. So as
11 to my client, I don't think this relief is necessary or
12 appropriate. Either the order does not affect any substantive
13 relief beyond what is stated in the Bankruptcy Code -- and I
14 think that's the intention, in which case it's unnecessary as
15 to my client because it's not doing anything beyond what the
16 statute says, or perhaps the order does go beyond the statute.
17 And that certainly would be inappropriate in the context of
18 this first-day motion and would be a basis to not enter it
19 as -- against my client.
20 So what I would ask is that my client be my client
21 then, the Kyrgyzaltyn, the state-owned mining company, be
22 excluded from the effect of this order. We understand what the
23 automatic stay says. And it's not like this order is going to
24 have any further impact on guiding how we respond and act and
25 in respect of this bankruptcy proceeding.
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1 THE COURT: Okay. Mr. Mintz, I'm not going to carve
2 your client out from the order. The order is what it is. It's
3 not unreasonable for these comfort orders to be entered. There
4 are thirty creditors listed on the list. I obviously don't
5 know how much each of them are owed, but some of them are
6 foreign creditors. It's not unreasonable to have an order.
7 There's no time I've ever seen at the beginning of a case a
8 foreign government getting a carveout from an -- the effect of
9 a comfort order, which is in essence what this is.
10 You understand that obviously there are actions
11 preceding now. You may want to argue that, for example, there
12 are some things that are not covered by the automatic stay that
13 are going on. I would expect you're going to argue some of
14 those things. And I don't think this order is going to change
15 that one way or the other, but I'm not carving your client out.
16 So I'm going to overrule your objection. I'm going to
17 make the changes -- ask the debtor to make the changes I wanted
18 to the order because I think those do need to be made. So in
19 case you actually want to come back before me and argue that
20 this falls into the regulatory exception or something, and you
21 may not for foreign sovereign immunity purposes or otherwise,
22 but you may, it'll be clear that it doesn't apply to that as
23 long as it fits within that category. So I think that's what's
24 fair here, and that's what I'm going to do with the order.
25 So, Mr. Bromley, with those three changes that I've
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1 requested, I'm going to overrule Mr. Mintz's objection. And
2 I'm going to enter the order with those changes. So you'll
3 need to submit a revised order to my chambers that incorporate
4 those provisions.
5 MR. BROMLEY: Very good, Your Honor. We will
6 absolutely do that. We'll get those circulated, and we'll
7 provide Mr. Mintz with a copy. So we need -- obviously, it's
8 what we were doing.
9 If I could just ask one question of Mr. Mintz while
10 we're here. Did you say that you're also representing
11 Kyrgyzaltyn at this point, Mr. Mintz? I just -- I wasn't clear
12 if I heard what you were saying.
13 MR. MINTZ: At this time, I'm only appearing on behalf
14 of the Republic.
15 MR. BROMLEY: Okay, thank you.
16 THE COURT: Okay.
17 MR. BROMLEY: So, Your Honor, thank you very much.
18 With that, we don't have any further relief other than to just
19 say thank you very much for your time. And we do have a
20 request if we could just set a date for a second-day hearing.
21 THE COURT: Yeah. And I have something for you, which
22 is --
23 MR. BROMLEY: Okay.
24 THE COURT: -- we have to have that initial case
25 conference within thirty days of the filing date. So I was
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1 trying to recall off the top of my head while I was sitting
2 here without trying to go through my papers while I was
3 listening to people argue what that date was. So maybe you can
4 remind me what date you actually filed last week.
5 MR. BROMLEY: I filed on the 31st.
6 THE COURT: Okay. All right. So I have to have a
7 conference before the -- by no later than the 29th. There's
8 some leeway, as you know, but I think we ought to go ahead and
9 schedule that. And it may not fit with your second-day hearing
10 because you may want more time for that because of today.
11 So I would go ahead and suggest that we do the initial
12 case conference if you're available on the 29th, which is the
13 thirtieth day, because you'll probably have a better idea about
14 what's going on and what may be coming to me and what you may
15 want to tell me by -- if we do this later in the period rather
16 than earlier in the period is my guess.
17 MR. BROMLEY: Okay.
18 THE COURT: And that is the latest date I could do it.
19 MR. BROMLEY: That works for us, Your Honor. That
20 would be perfect.
21 THE COURT: Okay. And Mr. Mintz, I'm sure you'll want
22 to come to that. So I'm just making sure there's no problem
23 with that date with you as well.
24 MR. MINTZ: No problem, Your Honor. Is that 10 a.m.
25 as well?
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1 THE COURT: Yes, 10 a.m. And we can do it on Zoom, if
2 you like, Mr. Bromley. That's fine. So we'll arrange that.
3 Okay. All right.
4 And then what did you have in mind for second-day? I
5 have my availability calendar in front of me.
6 MR. BROMLEY: Great. We were we were looking for the
7 week of July 12th.
8 THE COURT: Okay, that's fine. I have -- I'm at
9 any -- I have hearings generally on Tuesday, Wednesday or
10 Thursday. So the 13th, the 14th or the 15th are all fine.
11 MR. BROMLEY: If we could have the 15th, Your Honor.
12 THE COURT: That's fine.
13 MR. BROMLEY: Okay. Thank you very much.
14 THE COURT: Okay.
15 MR. BROMLEY: 10 a.m. as well?
16 THE COURT: Yep, uh-huh. And we'll also do it on
17 Zoom.
18 MR. BROMLEY: Great.
19 THE COURT: Okay. Anything else we talk about with
20 scheduling, Mr. Mintz, or otherwise?
21 MR. MINTZ: Not at this time, you're okay.
22 THE COURT: All right. You know -- I'm sure you know
23 where to find us when you're ready and you have figured out
24 what you want to do and you have some idea about when you're
25 going to be filing that motion and what we need to schedule it.
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1 And I'm guessing, to be really candid, that there'll
2 be a bunch of discovery that's going to happen to happen in
3 connection with that motion. I might be wrong, but my gut says
4 that's what would be necessary on both sides there because
5 we're talking about things that aren't necessarily all readily
6 available, at least not readily available to me anyway, I'll
7 say. So that would be my guess. But that's fine. When you're
8 ready, you'll let us know.
9 MR. MINTZ: Thank you, Your Honor.
10 MR. BROMLEY: Well, thank you very much, Your Honor.
11 We really appreciate all the time and attention both from you
12 as well as from your staff and also thanks to the U.S.
13 Trustee's Office. We do appreciate the accommodations.
14 THE COURT: Okay. If there's nothing else than
15 anybody wants to discuss today, then court is adjourned.
16 MR. BROMLEY: Thank you very much, Your Honor. Have a
17 great day.
18 THE COURT: Thank you. Bye-bye.
19 MR. MINTZ: Thank you.
20 (Whereupon these proceedings were concluded at 11:32 AM)
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1
2 I N D E X
3 E X H I B I T S
4 DEBTORS' DESCRIPTION MARKED ADMITTED
5 Declaration of Mr. 20
6 Desjardins
7
8 RULINGS: PAGE LINE
9 Motion for joint administration is 50 23
10 granted.
11 Motion to extend deadlines is granted. 50 21
12 Motion authorizing debtors to maintain 51 17
13 a consolidated creditor matrix is
14 granted.
15 Motion to appoint Stretto as claims 53 8
16 and noticing agent is granted.
17 Motion for order enforcing Sections 60 25
18 362, 365(e)(1), and 525 of the
19 Bankruptcy Code is granted.
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2 C E R T I F I C A T I O N
3
4 I, Sharona Shapiro, certify that the foregoing transcript is a
5 true and accurate record of the proceedings.
6
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9 ______
10 Sharona Shapiro (CET-492)
11 AAERT Certified Electronic Transcriber
12
13 eScribers
14 352 Seventh Ave., Suite #604
15 New York, NY 10001
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17 Date: June 9, 2021
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45:4;57:6;58:24 49:9 9:18;53:24 19:5,19;23:1;40:1, A acting (2) afford (1) amended (1) 21;49:12;54:24; 6:19;35:7 33:17 27:25 56:22;58:12 abbreviations (1) action (4) again (9) amending (1) approval (1) 11:5 28:23;35:5,9;37:1 6:2,11,12;16:16; 53:9 51:11 ability (9) actionable (1) 26:13,14,15;28:24; American (2) approved (1) 28:6;32:25;38:20; 37:1 52:24 54:8,19 36:14 41:3,14;44:22; actions (6) against (11) Among (1) April (2) 45:15;47:10;50:10 19:14;36:10,13; 25:13,17;26:3; 43:1 23:18;27:6 able (12) 43:1;57:11;59:10 27:16;29:2;30:24; amount (7) arbitral (1) 18:22;19:6;20:4,7; activated (1) 31:6;36:22;44:23; 14:3;23:2,13; 26:10 21:11;22:13;37:25; 14:24 56:15;58:19 27:22;28:4;44:18; arbitration (12) 41:25;43:21;45:2, active (1) agencies (1) 50:17 24:9,9,10;28:13; 22;55:10 31:24 18:11 amounts (3) 30:25;31:2,3;40:14; aborted (1) activities (1) agenda (8) 22:13;36:2,13 42:6;44:14,17;45:21 23:8 27:5 7:15,17;48:11; ample (1) area (1) above (2) activity (5) 49:1;50:4;51:24; 55:13 23:19 8:18;11:21 35:5,6;45:6,9,10 53:16,18 ANDREA (2) areas (1) abruptly (1) actual (1) agent (2) 5:17;7:9 14:9 17:20 47:14 48:16;52:1 annual (1) argue (5) absent (2) actually (10) aggressively (1) 18:6 40:20;59:11,13, 47:8,19 6:5;10:19;20:6; 30:20 annul (1) 19;61:3 absolutely (3) 22:21;23:6,9;46:18, ago (1) 56:23 arguing (1) 27:10;48:7;60:6 19;59:19;61:4 9:23 anticipate (1) 25:3 abstain (2) add (1) agree (2) 38:2 argument (3) 41:20;47:25 49:21 19:13;23:4 antidiscrimination (1) 36:1;46:5;50:23 abstention (2) added (1) agreed (3) 54:22 arguments (2) 43:24;46:2 14:24 42:6,6;45:23 appear (1) 10:20;35:14 abutment (1) additional (5) agreement (10) 6:5 ARNOLD (3) 35:19 12:24;49:21; 16:10,12,13;23:16, appearance (4) 5:2;6:23;34:20 accelerated (1) 50:11,15;55:17 17;26:5,6,7,9;27:24 7:3,3;10:15,17 around (5) 17:8 address (6) agreements (4) appearances (3) 12:16;16:3;18:6; accept (1) 37:11,25;38:17; 21:15,19;24:6,7 6:5,10,15 21:16;53:22 19:19 46:16;55:21;58:5 ahead (12) appeared (1) arrange (1) access (1) addressed (1) 6:9;19:25;20:11; 34:19 62:2 50:13 42:5 48:5;49:25;50:24; appearing (4) arrest (2) accessing (1) adequately (1) 51:20,21;53:11; 6:23,25;7:13; 24:21,22 31:25 45:21 55:19;61:8,11 60:13 arrested (2) accommodating (1) adjourned (1) Airlines (1) applicable (4) 17:19;25:7 8:2 63:15 54:19 20:7;23:21,23; arrests (1) accommodations (2) adjudicated (1) allegations (1) 54:6 18:2 8:6;63:13 45:23 11:23 application (7) art (1) accomplished (1) administration (4) alleged (2) 37:23;48:15; 23:24 8:5 49:1,4,12,14 25:1;31:4 51:25;53:7,11; articulated (2) accordance (6) administrative (1) alleging (2) 54:15;56:13 46:2;58:6 18:16;31:10; 46:13 24:23;25:18 applies (1) Asia (1) 39:10;43:8,11,20 admission (3) allow (4) 58:9 11:14 accordingly (2) 19:9;38:22;39:21 21:24;27:7;49:4; apply (2) assemble (1) 19:19;45:10 admit (2) 55:10 45:11;59:22 50:16 account (14) 20:1,11 allowed (2) applying (2) asserting (1) 9:24;10:3,10;13:2; admitted (1) 22:16;28:8 47:23;49:17 57:19 16:19,23;30:1,5,9, 19:3 allowing (1) appointed (5) asset (3) 12;40:8,9;44:2,3 advise (1) 47:24 20:4;28:18,20; 17:16;31:15;34:16 accounts (1) 34:20 alluded (3) 32:2;47:9 assets (7) 31:25 affairs (2) 38:21;41:17,24 appointment (1) 12:15;36:24,24; acknowledged (3) 39:13;40:21 along (1) 51:25 40:5;44:1,4;50:7 19:11;40:3;44:14 affect (3) 6:24 appreciate (9) assistance (2) acknowledges (1) 41:22;46:14;58:12 alter (4) 6:8,11;8:6;32:11; 12:5;30:13 43:25 affects (1) 15:19;32:1;35:13; 38:12,16;46:6;63:11, assume (1) Act (13) 44:24 36:15 13 49:16 7:7;23:5;29:16; affiliate (1) altered (1) approach (1) assumption (1) 35:1;39:23;41:2,16; 49:13 19:15 30:23 20:16 42:15,20;44:20; affiliates (1) always (2) appropriate (9) a-third (1)
Min-U-Script® eScribers, LLC | (973) 406-2250 (1) abbreviations - a-third [email protected] | www.escribers.net 21-11051-lgb Doc 90-1 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 1 KUMTOR GOLD COMPANY CSJC and Pg 69 of 81 KYRGYZ REPUBLIC June 8, 2021
22:8 16:18,23;30:1,5,9, 11:12 Bromley's (2) 15:15;34:7 attached (1) 12;31:25;40:8;44:2, bit (4) 45:5;49:24 carve (1) 42:17 3 8:5,8,13;11:1 brought (1) 59:1 attempt (1) bankruptcy (11) blanket (1) 33:21 carveout (1) 31:8 40:23;42:8,22; 26:12 build (1) 59:8 attempted (5) 44:24;45:13;49:10; blasted (2) 35:18 carving (1) 10:8;17:11;29:20; 52:18;56:10;57:8; 14:9,12 Building (2) 59:15 30:8;54:17 58:13,25 blasting (2) 5:13;53:24 case (29) attention (2) barred (1) 14:7,10 built (2) 6:9,14;8:4,15; 38:19;63:11 29:9 block (1) 12:2;54:12 10:21;13:9;19:7; Attorneys (3) barrier (1) 53:24 Bulgaria (2) 22:3;37:12;38:24; 5:3,12;6:10 35:14 board (7) 25:7,8 40:13,24;41:7;42:2, audio (1) bars (2) 28:20,21;29:6; Bulgarian (1) 8;43:25;44:8,8; 6:7 15:8,9 39:20;41:5;42:14; 25:9 45:18;46:3;47:21; August (1) based (3) 43:1 bunch (1) 56:3;57:22,23; 11:18 29:2,15;47:13 bodies (1) 63:2 58:14;59:7,19; authorities (4) basic (2) 53:22 business (5) 60:24;61:12 13:20,21;25:17; 36:7;53:24 Bolturuk (8) 11:19;16:24;18:6, cases (12) 57:22 basically (1) 28:18;29:2,5,9,16; 9;40:19 25:13;34:5;38:21; authority (9) 56:11 30:24;31:12;42:15 Bye-bye (1) 41:17,20,21;49:2,4; 39:19,25;41:2; basis (8) books (1) 63:18 51:13;53:25;54:18, 42:15,16,20;49:5; 8:4;13:23;25:10; 50:13 25 50:6;51:9 32:6;36:5;47:23; border (2) C cash (1) authorization (1) 49:8;58:18 11:16;18:10 40:9 30:10 became (2) bordered (1) calendar (2) catch (1) authorize (1) 24:1;35:17 11:15 34:9;62:5 52:15 42:22 Beckerman (2) Boring (1) call (3) category (1) authorized (13) 6:3,17 14:4 6:9;8:10;37:20 59:23 19:10,17,20;20:2, become (1) both (6) called (3) cause (1) 6;39:22;41:8,8,12, 25:25 19:13;26:18; 15:10,20;18:23 33:13 16;43:3,20;47:13 began (3) 39:11;41:5;63:4,11 calling (1) causes (1) automatic (19) 8:25;17:9;22:22 breaches (2) 24:22 37:1 32:19;34:6;46:16; begin (1) 29:3,3 came (2) causing (1) 49:18,22;53:17,22; 13:22 break (2) 9:8;48:14 15:6 54:1,2,21;55:3,11; beginning (3) 14:7;49:7 Cameco (7) cautions (1) 57:2,7,12;58:8,10, 8:24;15:17;59:7 Bridge (2) 20:23,25;21:5,18; 10:14 23;59:12 behalf (13) 35:18,19 22:3,10;23:12 ceased (1) availability (1) 6:23;19:10,18,20; briefing (1) can (22) 42:14 62:5 27:18;39:23;40:2; 29:14 6:7;10:20;11:1; Centerra (20) available (5) 41:3,17;42:15,19,20; briefly (2) 13:15;14:4,19;19:12, 12:14,14,15; 10:24;45:20; 60:13 19:8;42:10 18;20:17;32:19; 20:24;21:6;22:8,8, 61:12;63:6,6 bench (2) bring (4) 33:16,24;36:7,9; 16,25;23:4,13;25:4; average (1) 33:25;57:25 10:25;38:18,23; 42:5;45:21;53:12; 28:13,19,23,24;29:4, 14:5 Benjamin (2) 42:12 55:20;57:16;58:9; 5,6;49:11 award (2) 6:22;19:4 bringing (1) 61:3;62:1 Centerra's (2) 21:8;26:3 best (2) 33:2 Canada (5) 20:22;24:22 aware (1) 29:15;40:7 brings (2) 12:15,16;21:5; Central (2) 55:3 better (2) 30:18;53:16 28:25;30:24 11:14;38:24 away (1) 46:17;61:13 broad (2) Canadian (2) CEO (1) 14:12 beyond (7) 19:6;37:11 28:24;29:17 25:7 38:25;41:19;45:8; BROMLEY (52) candid (1) certain (11) B 58:6,13,15,16 6:17,18;7:15,19, 63:1 11:23;22:17; billion (2) 22;19:1,11,22,24; capacity (1) 24:13;32:21;33:1; back (7) 28:2,11 20:15;32:11;33:19, 35:8 40:11;41:10;43:1; 15:22;20:22;21:3; billions (1) 24;34:3;38:7,14; capital (1) 44:11,25;58:5 23:2;26:1;44:21; 10:2 39:5;40:12;44:10, 11:13 certainly (8) 59:19 bind (1) 13;48:4,7,19;50:1,3, caption (1) 32:18,23;40:13; background (3) 15:7 22;51:5,20,23;52:9, 49:3 44:3;45:7,8;53:23; 7:16;8:8,14 binding (2) 20,23;53:7,14;55:25; carbon (4) 58:17 bad (1) 45:3;54:15 56:17;59:25;60:5,15, 14:24;15:1,2,4 certificate (1) 25:6 binds (2) 17,23;61:5,17,19; careful (1) 48:23 bank (14) 15:1,8 62:2,6,11,13,15,18; 8:23 challenge (1) 9:24;10:1,3,10; Bishkek (1) 63:10,16 carefully (2) 45:18
Min-U-Script® eScribers, LLC | (973) 406-2250 (2) attached - challenge [email protected] | www.escribers.net 21-11051-lgb Doc 90-1 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 1 KUMTOR GOLD COMPANY CSJC and Pg 70 of 81 KYRGYZ REPUBLIC June 8, 2021
challenging (1) clarify (1) commercial (9) 29:3 44:11,19 21:10 51:15 8:25;21:12,13; confirm (1) contrary (1) chamber (1) clarifying (1) 22:11;35:5,6;45:6,9, 45:2 57:5 15:7 57:17 9 conflicts (1) control (9) chambers (5) classic (1) Commission (4) 56:9 19:15;21:5;25:2; 50:2;51:4,21; 35:1 12:20;27:4,4,6 conforms (1) 27:7;28:9,17;29:7, 53:13;60:3 clear (9) commitment (1) 37:24 10;39:19 change (4) 6:4;17:14;30:3,11; 37:19 connected (1) controlled (6) 22:23;24:17; 31:18;35:11;44:2; companies (4) 9:12 10:9;15:19,23; 44:16;59:14 59:22;60:11 40:4;43:6,7,14 connection (6) 21:1;22:2;23:12 changed (3) clearly (5) Company (28) 9:20;17:12;24:17; controlling (1) 24:4,5;25:11 22:11;29:22; 5:22;6:14,20,21; 48:3;49:5;63:3 7:24 changes (5) 38:24;43:15;53:20 8:25;11:3,3,4;12:14, connections (2) controversial (1) 22:23;59:17,17, clerks (1) 18;13:17;15:18,18; 40:6;44:9 56:16 25;60:2 52:14 16:2;20:23,23;22:3, consider (3) conversations (1) Chapter (9) client (7) 4;28:24;39:19,23; 22:22;45:24;46:9 48:13 27:1;32:3,4;38:21; 58:11,15,19,20,20; 40:2;41:6;43:8; consideration (1) convicted (1) 51:13;53:21;54:24; 59:2,15 47:10,22;49:3;58:21 42:1 17:20 55:6,11 clients (1) company's (3) considered (1) conviction (1) characterization (1) 54:9 41:13;42:23;43:20 22:25 17:21 19:13 Climate (1) compared (1) considering (2) cooperative (2) characterize (1) 18:8 52:12 33:20;34:19 8:23;38:5 39:6 climates (1) competent (1) consistent (2) copy (1) characterized (1) 18:6 54:23 31:13;54:3 60:7 17:6 close (1) complaint (1) consistently (1) CORNELL (10) characterizes (1) 11:15 27:25 24:2 5:18;7:11;37:20, 19:12 closed (1) complete (4) consolidated (3) 25;38:10;52:11,25; charter (5) 11:3 25:22;26:12,16; 49:3;51:10,10 53:3,3,13 43:16;47:6,7,14,21 cloth (1) 50:13 consolidating (1) corporate (3) charters (5) 36:1 completely (4) 49:6 20:8;21:4;43:18 41:13;42:24;43:6, coal (1) 34:15;35:25;38:5; constitute (1) corporation (2) 10,20 18:3 47:5 7:4 20:5;47:19 chemicals (1) Code (8) compliance (1) constituted (1) corrupt (1) 15:4 44:24,25;45:13; 26:17 24:25 25:3 Chicago (1) 49:10;54:11;56:10; complicated (2) constitutes (1) corruption (3) 5:6 57:8;58:13 13:17;14:16 32:15 18:9;24:23,24 chief (1) colleague (3) complied (1) constrain (2) counsel (6) 24:23 7:11,21,23 47:7 44:21;45:15 6:16,19,20;37:21, China (2) colleagues (1) comply (2) constraint (1) 22;38:5 11:15,16 56:5 42:23;54:12 18:9 counterparties (1) choice (3) Colliers (1) comprehensive (1) constructs (1) 55:10 40:10,11;44:10 54:11 26:5 23:4 counterparty (1) Christian (1) comfort (2) computers (1) construed (1) 55:3 7:23 59:3,9 28:16 57:6 country (2) CIA (1) comfortable (1) conceive (1) consummated (1) 17:5,6 18:19 27:20 45:2 22:22 couple (5) circulated (1) coming (3) concern (1) contain (1) 9:6,23;17:21; 60:6 24:12;46:6;61:14 33:3 50:13 25:24;39:4 circumstance (1) comity (2) concerned (2) contained (2) coups (1) 55:14 41:21;43:23 31:12;36:8 18:21;57:5 17:4 City (3) commenced (3) concerns (4) content (1) course (7) 9:13,19;11:13 30:24;31:1;55:12 19:6;37:11;45:8; 54:13 13:23;16:8;17:1; CJSC (1) commencement (1) 58:5 context (6) 20:18;25:16;35:2; 49:4 51:12 concession (5) 8:13;11:1;24:7,10; 38:12 claim (4) commencing (1) 21:3,8,15;22:24; 34:11;58:17 COURT (86) 27:8;28:4,4;31:5 32:3 23:19 continued (3) 6:2,3;7:12,20,24; claimed (1) comment (5) concluded (1) 17:7;23:10;25:16 10:19;11:1;19:1,6, 28:1 34:25;52:3,4,5; 63:20 continues (3) 22,25;20:5;26:2,11; claims (14) 55:16 condition (1) 18:9;27:12;29:16 28:2,6;29:2,8,11,13; 25:17,23;26:11; comments (10) 56:23 contract (3) 31:6;32:10,22; 27:23;28:1,11;31:5; 38:2;39:5;46:15, conference (3) 12:24;13:1;26:13 33:23;36:2;37:3,11, 36:1,2,22;44:18; 20,21;55:16,20;56:1; 60:25;61:7,12 contracts (5) 15,17,19;38:1,7,11, 45:23;48:16;52:1 58:3,4 confidentiality (1) 15:25;40:11;42:7; 17,23;39:1,2,8;40:1,
Min-U-Script® eScribers, LLC | (973) 406-2250 (3) challenging - COURT [email protected] | www.escribers.net 21-11051-lgb Doc 90-1 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 1 KUMTOR GOLD COMPANY CSJC and Pg 71 of 81 KYRGYZ REPUBLIC June 8, 2021
20,21;41:10,13,20, custodian (2) 22,25;41:3,15;42:15, descriptions (1) disable (1) 20;43:12,19,24; 32:15;34:14 20;43:10;46:1;49:9; 13:7 27:11 44:16;45:2;46:9,19; customs (1) 50:10 designated (1) disagree (1) 48:17;49:16,23; 18:10 debtors' (7) 14:13 48:9 50:20,21;51:17;52:7, cyanide (1) 30:10;37:21,22; DESJARDINS (16) disbursements (1) 10,22,24;53:6;54:7; 14:23 38:5,20;41:22;50:10 5:22;8:10;10:23; 49:7 55:19;56:1,18,21; debtor's (1) 18:22;19:9,17,23; discovered (1) 57:15;59:1;60:16,21, D 41:17 20:9,13,17;37:8; 30:7 24;61:6,18,21;62:1, debts (3) 38:22;40:1,3;41:1,16 discovery (1) 8,12,14,16,19,22; damage (3) 33:5,6,7 Desjardins' (4) 63:2 63:14,15,18 27:22;31:14;34:16 decades (3) 18:21;19:2;32:12; discuss (1) courts (4) damages (5) 9:14,24;31:25 39:22 63:15 10:13;25:18; 25:18,20,20,21; decide (2) despite (1) discussed (3) 32:18;54:23 34:23 14:8;47:16 29:16 38:7;50:19;52:2 court's (4) danger (1) decided (4) detail (1) discussing (1) 29:17;41:3;44:22; 55:4 25:9;28:11;29:13; 8:12 38:7 45:15 DANIEL (2) 47:1 detailed (2) discussion (3) covered (1) 5:22;8:10 decision (1) 10:24;13:22 7:17;42:9;53:8 59:12 date (10) 34:17 details (1) discussions (1) create (1) 20:14;27:14;31:8; declarant (1) 9:17 23:11 35:25 50:9;60:20,25;61:3, 8:11 detained (1) dismiss (4) created (2) 4,18,23 declaration (17) 25:8 46:24;47:3,13,25 16:5;22:8 dated (2) 8:9,11;9:18;10:23; determination (2) dismissal (3) creates (1) 16:13;23:18 18:21,23;19:3,8,20; 41:14;43:18 43:17;46:2;51:1 14:24 dates (1) 20:1,11,13,20;32:12; determine (4) displaced (1) creditor (4) 20:22 38:22;39:22;40:3 14:3;39:16;40:21; 39:20 51:8,10;54:4,5 day (6) declared (1) 44:18 dispute (4) creditors (13) 13:25;27:15;28:7; 11:18 determined (1) 42:5;43:4;44:13; 9:3;13:4;31:16; 45:6;61:13;63:17 deep (1) 39:14 45:20 40:18,18;44:6; days (8) 31:22 determines (2) disputes (2) 50:17;51:11,12; 8:3;10:6;28:2,4; defeats (1) 57:15,15 26:11;45:22 53:21;58:8;59:4,6 48:14;50:8,9;60:25 41:3 develop (2) disruptions (1) criminal (1) day-to-day (1) defense (1) 21:9,12 17:6 25:13 13:23 28:6 development (1) dissolved (1) critical (7) deal (7) deferred (1) 18:10 15:1 9:9,14,16;11:11; 13:8;20:17;31:4; 46:12 diameter (1) dissolving (1) 13:15;40:24;46:10 35:10,12;53:10,25 deferring (1) 14:21 47:19 critically (1) dealer (1) 46:9 dicey (1) District (4) 9:17 16:2 defined (1) 24:19 36:10;52:13; Cromwell (3) dealing (3) 49:9 different (8) 54:19;56:6 6:18;41:2,16 30:21;31:17;54:4 defraud (1) 10:10;13:12;30:9, divests (1) cross-examination (1) dealings (1) 29:20 12;35:16,25;44:11; 41:5 10:24 18:3 delegated (1) 49:19 docket (6) cross-examine (3) dealt (1) 39:18 difficult (2) 48:24;49:2;50:5; 18:25;20:12;37:8 57:24 delivered (3) 33:8;51:2 51:7,25;53:18 crush (1) debate (1) 14:17;30:4,5 difficulty (1) doctrine (1) 14:17 19:12 demonstrates (1) 32:20 39:13 crushed (2) debtor (17) 47:4 direct (5) documentation (11) 14:18,19 6:15;8:14,15; denied (1) 11:7;21:21,22; 9:14,16;11:9,11; crushers (1) 11:10;16:18;19:10, 28:5 26:20;30:8 15:14;21:16;23:1, 14:20 16,18,23;28:5;33:4; DEPARTMENT (4) directed (1) 14;24:13;29:22;31:1 CSJ (1) 39:11;41:9;43:6; 5:11;18:5,8,13 36:14 documents (7) 11:4 49:10,12;59:17 deposit (1) directing (1) 23:18;24:1,3,5,24; CSJC (2) debtor-by-debtor (1) 30:9 54:23 28:14;48:2 6:15;11:3 49:7 deposited (1) direction (1) dollar (2) Cuomo (1) debtors (37) 16:18 9:7 16:17;27:22 35:17 6:20;8:15;9:10; described (5) directly (2) dollars (7) current (2) 10:15;11:2,12,19; 16:22;30:19; 12:25;29:10 10:2;26:4;28:2; 15:6;25:19 12:13;13:1;16:14; 50:12,18;58:7 director (7) 29:21;30:4,15;36:8 currently (3) 20:21;25:17;26:3; describes (1) 19:23;20:7,9,10; dollars' (1) 20:10;40:9;41:8 27:10,16;29:4,15; 13:23 28:19;39:24;47:9 28:11 custodial (1) 30:2,7,19;31:7,10, description (1) directors (2) domain (1) 34:13 11,23;39:6,16;40:4, 16:21 47:10,20 35:16
Min-U-Script® eScribers, LLC | (973) 406-2250 (4) courts - domain [email protected] | www.escribers.net 21-11051-lgb Doc 90-1 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 1 KUMTOR GOLD COMPANY CSJC and Pg 72 of 81 KYRGYZ REPUBLIC June 8, 2021
domestic (1) elected (4) 21:18;23:16;26:5, 36:3 25:10 7:6 17:24;27:2;44:12; 6,8;49:15;54:6;59:3 Exchange (2) done (6) 47:20 enterprise (1) 12:19,19 F 24:10;34:21;43:8, election (3) 26:18 exchanges (1) 11,15;54:16 17:23,23,24 entire (2) 29:1 fact (7) dore (11) elections (1) 13:24;40:19 excluded (1) 11:8;12:1;35:12, 15:8,9,10,11,16, 17:17 entirely (1) 58:22 15;38:13;44:16; 18;16:5,5,22;29:23; electric (1) 30:11 exclusive (1) 57:21 38:8 15:5 entities (6) 16:3 facto (1) dormant (1) electrowinning (1) 11:8;39:10,11,12, excused (2) 54:22 11:6 15:5 12;53:25 38:9,12 factory (1) down (5) elevate (1) entitled (2) executive (1) 14:23 14:4,20;26:5;27:9; 21:25 7:5;35:8 24:23 facts (1) 30:13 eliminated (1) entity (11) exercise (2) 46:2 downs (1) 20:9 9:20;10:9;11:6; 21:5;30:22 fair (2) 17:3 else (4) 15:20;21:1,4,22; exercising (1) 23:2;59:24 drilled (2) 7:13;47:20;62:19; 22:2,9;23:12;47:6 41:6 faith (1) 14:5,6 63:14 entry (3) exist (1) 31:17 Drilling (2) embodied (1) 27:15;45:16;55:14 21:6 fall (2) 14:2,2 24:1 environment (1) existence (1) 8:24;57:13 dump (2) emergency (1) 16:24 13:3 falls (2) 14:11,13 8:4 environmental (11) existing (4) 57:14;59:20 during (1) eminent (1) 11:24;25:18,20,20, 26:10;31:11;41:5; far (3) 14:5 35:16 21;26:7,10,24;27:21; 47:6 27:12;31:9;36:9 duty (1) employed (2) 31:5;45:8 exists (1) farther (1) 29:3 12:25;13:3 equipment (1) 20:23 57:16 dynamic (1) employees (6) 13:16 expanded (1) fast (1) 25:12 9:2;12:9,23;13:1; equity (3) 17:25 26:14 26:20;44:4 22:13,14,15 expect (2) February (1) E employment (1) ESQ (3) 47:25;59:13 27:3 26:21 5:8,17,18 experience (2) Federal (1) earlier (5) encompass (1) essence (1) 33:25;55:1 5:13 28:5,7;29:18,22; 45:14 59:9 expertise (1) feel (1) 61:16 end (1) evaluate (1) 12:6 36:4 easier (1) 20:17 21:9 explaining (1) feet (2) 33:15 endemic (1) evaluating (1) 47:13 8:18;11:21 easy (1) 18:18 30:20 explosives (1) few (7) 34:21 ends (1) even (5) 14:6 8:3;26:25;33:3; effect (5) 18:15 32:21;40:16; express (1) 42:18,24;46:20; 24:13;45:16; enforce (1) 46:20;47:1;48:20 43:9 48:14 52:19;58:22;59:8 54:24 event (10) expropriated (1) fiduciary (1) effective (2) enforceability (1) 9:5;16:11;19:11; 17:16 29:3 44:22;56:12 56:15 22:11,12;30:21; expropriation (8) field (1) effectively (9) enforceable (3) 32:5;39:7;45:9; 9:5;16:11;19:11; 11:22 11:6;15:10;21:24; 44:22;52:18;56:12 56:22 30:21;32:5;35:15; fifth (1) 24:21;27:18;28:8, enforced (1) eventually (3) 36:5;39:7 14:21 17;29:12;39:20 45:17 20:24;21:7;23:3 extend (1) figure (2) effectiveness (1) enforcement (3) everybody (1) 50:6 35:23;36:11 27:5 18:17;24:8;45:14 43:25 extension (4) figured (1) efficient (1) enforcing (2) evidence (9) 50:6,24,25;51:1 62:23 49:4 32:21;54:21 10:8;18:23;19:3; extensions (1) file (6) efforts (1) engaging (1) 20:1,8,11,14;47:4,18 50:11 8:4;46:24;47:3; 17:17 35:4 exactly (2) extent (5) 49:5;50:7;51:10 ego (4) enjoining (1) 16:22;52:9 22:17;43:14;57:2, filed (14) 15:19;32:1;35:13; 57:6 example (2) 14;58:5 7:24;8:9;13:19; 36:15 enormous (1) 32:24;59:11 external (4) 25:13,17;27:17,19; eight (2) 13:16 excavators (1) 18:14;39:18,24; 28:13;33:10;34:5; 24:16;25:1 enough (1) 14:10 42:16 49:25;54:3;61:4,5 eighty (1) 26:19 except (1) extracted (2) filing (5) 15:12 enter (4) 49:21 14:15,19 27:1;28:14;42:23; either (8) 31:6;50:20;58:18; exception (3) extraction (1) 60:25;62:25 12:25;36:14;45:1; 60:2 57:7,12;59:20 14:16 filings (1) 47:4,5,13;55:2;58:12 entered (8) excess (1) extradition (1) 41:7
Min-U-Script® eScribers, LLC | (973) 406-2250 (5) domestic - filings [email protected] | www.escribers.net 21-11051-lgb Doc 90-1 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 1 KUMTOR GOLD COMPANY CSJC and Pg 73 of 81 KYRGYZ REPUBLIC June 8, 2021
finally (1) forum (5) 54:20 guiding (1) high (1) 28:1 40:12,13;42:6; Gold (62) 58:24 12:8 financial (6) 44:14;45:20 5:22;6:14,20;8:15, gut (1) highest (2) 9:21,21;16:1; forward (11) 16,16;9:18;10:2; 63:3 8:19,19 27:21;29:24;31:24 26:14;38:25; 11:3,20,21;12:6,8, highlight (2) find (3) 40:15,25;41:4,14; 11,12,14,14,15,22; H 42:24;43:5 12:4;36:21;62:23 44:12,15;46:25; 13:6,9,9,11;14:3,13, highly (1) fine (5) 47:24;48:6 15,16,17,18,25;15:1, hair (1) 13:17 62:2,8,10,12;63:7 four (3) 3,6,6,7,9,11,11,13, 14:21 historical (1) firm (2) 27:19;28:2,4 16,17,22;16:1,4,5,6, hand (1) 20:21 6:24;48:10 fourth (5) 10,12,17,22;18:3; 37:17 hold (1) firm's (1) 24:14,16;25:22, 21:15;29:21,23,24; handle (1) 22:18 7:3 25;42:3 30:5;34:21,23; 33:9 holes (3) first (19) frame (1) 35:22;38:8;49:3,11 happen (2) 14:5,6,7 7:17;8:2,13,24; 20:24 Good (7) 63:2,2 holiday (1) 13:9,11;14:2,17; framework (1) 6:2,17,22;7:9; happened (8) 25:7 21:14,17,23;22:20; 18:15 31:17;53:14;60:5 21:19;25:11; Honor (83) 27:2;48:20,25;55:9, frankly (2) govern (1) 26:25;27:3;30:14; 6:22;7:8,9,19,22; 20;56:8,16 35:9;55:4 39:15 36:12,21;39:6 8:1,7;9:4,9;10:11,22; first-day (11) Friday (2) governance (4) happening (2) 11:2,20;12:1;13:2; 8:8,11;34:7;37:6, 8:9;29:13 39:14,16;41:19; 9:24;14:21 15:22;16:21,24;18:4, 21;46:10,12,13;48:6, front (2) 43:18 happens (1) 7,20;19:4,5,24; 11;58:18 47:18;62:5 governed (4) 14:15 20:15,20;26:14; fit (1) front-end (1) 9:16;12:20;24:6; happy (2) 29:18,19;30:10,17; 61:9 14:11 26:13 33:21;51:15 31:23;32:7;33:19; fits (1) fruition (1) governing (3) hard (2) 35:22;36:6;37:13,16, 59:23 23:7 23:1;24:1;31:1 45:2;54:10 18;38:4,16,18;39:3, floor (1) FSIA (1) Government (26) harm (2) 11;41:23,24;42:11; 7:20 45:10 5:3;16:15;17:3,19; 46:11;50:17 46:4,6,7,18;48:7,12, flowed (1) full (4) 20:22,25;21:4,20,25; head (1) 25;49:13,20;50:3,18; 10:3 26:9,12;28:3;32:4 22:7,12;23:3;25:2,9, 61:1 51:5,7,14,16,23; focus (1) full-time (1) 12;26:4,19;27:7,18, headed (1) 52:2,4,9;53:3,5,14, 43:6 12:23 20;28:16;29:7; 32:17 18,20;54:16;55:15; focused (1) fully (1) 35:21;44:23;45:3; headquarters (1) 58:4,6;60:5,17; 17:18 18:13 59:8 11:12 61:19,24;62:11;63:9, focusing (1) fundamental (1) governmental (3) hear (4) 10,16 54:22 22:24 57:10,21,25 15:21;41:20; Honor's (1) following (1) further (5) government's (1) 46:22;55:16 38:19 38:17 24:17;29:11; 45:7 heard (10) hostage (1) follows (1) 50:25;58:24;60:18 governs (1) 10:20;44:2;49:23, 17:12 41:12 future (1) 47:22 24;50:21,23;51:18; hour (1) Foreign (17) 39:3 grant (7) 52:24;53:1;60:12 38:3 7:7;12:21;34:25; 44:22;50:1,24; hearing (12) hours (1) 35:3,4,8;44:20;45:4; G 51:3,20;53:11;56:21 29:11,12;34:10, 38:6 47:22;53:21,22; granted (1) 10;37:14;41:21; HSBC (1) 57:23;58:1,8;59:6,8, gained (1) 28:3 43:24;48:15,22; 10:1 21 29:5 great (4) 56:20;60:20;61:9 human (1) forged (1) generally (1) 53:6;62:6,18; hearings (1) 14:21 30:8 62:9 63:17 62:9 hundreds (1) form (3) geologists (1) grind (1) held (4) 10:1 51:11;54:6,14 14:8 14:20 22:13,14;29:12,12 formal (4) glacier (1) groundwork (1) help (3) I 6:5;38:23;42:12; 11:22 37:12 29:6;36:11,21 46:8 glaciers (5) guarantee (1) helpful (2) idea (5) formally (1) 11:22,25;12:2,3; 56:24 37:3;58:5 12:8;35:7,10; 48:21 45:8 guess (11) helping (1) 61:13;62:24 formed (1) glad (1) 32:14;33:14,24; 8:3 identified (3) 27:4 34:19 37:4;48:4;52:10,25; helps (1) 40:17;45:25;46:11 former (6) global (1) 55:21,24;61:16;63:7 56:14 identify (1) 11:16;18:2;24:22; 54:21 guessing (3) hereby (1) 6:12 25:7;42:14;56:5 goal (1) 7:16;32:23;63:1 20:13 IL (1) forth (3) 32:3 guidelines (1) herein (3) 5:6 20:20;23:2;38:2 goes (1) 31:14 56:21,23;57:5 illegal (4)
Min-U-Script® eScribers, LLC | (973) 406-2250 (6) finally - illegal [email protected] | www.escribers.net 21-11051-lgb Doc 90-1 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 1 KUMTOR GOLD COMPANY CSJC and Pg 74 of 81 KYRGYZ REPUBLIC June 8, 2021
9:5;19:12;30:21; 23:20 7:6;9:20;12:5; jail (2) KLEINMAN (2) 39:6 Indeed (2) 16:2;18:16,19;24:9, 17:11,11 5:8;6:24 illiquid (1) 10:4;11:15 21;26:17;31:16; jailed (1) knee-jerk (1) 22:1 independence (1) 35:6;41:21;43:23; 17:20 35:1 imagine (1) 11:18 44:14;56:4 January (2) knew (1) 33:25 independent (1) Interpol (1) 17:23;27:2 27:20 immediately (2) 18:14 24:20 Japarov (3) knowledge (1) 28:23;56:12 indicate (1) into (34) 17:10,14;27:2 12:3 immunities (4) 27:14 7:17;9:8,17;13:2; Jensen (1) known (8) 7:5,7;44:20;45:4 indirect (1) 14:12;15:8,17;16:6, 7:23 13:19;15:8;16:9; Immunity (6) 26:21 7,23;18:23;19:3; Jim (1) 20:23;23:15,17; 35:1,3,4,8;44:25; indirectly (2) 20:1,11,13;21:12,14, 6:17 24:20;26:7 59:21 13:3;29:10 18;22:3,15;23:16; joint (4) KOC (7) impact (1) indiscernible (1) 26:5,6,8;29:25;30:9; 11:3;49:1,11,14 11:4,5,5,10;25:18; 58:24 31:3 32:8;54:2,9;55:11; jointly (1) 26:3;28:12 implement (1) individuals (2) 56:25;57:13,14; 49:3 Kumtor (23) 41:23 27:19;31:19 59:20 JSC (1) 5:22;6:14,20,20; implementation (2) influence (1) introduced (1) 15:20 8:15,15;11:2,4,20, 18:17;25:24 18:14 27:6 Judge (2) 21;12:12;16:22; implemented (3) information (10) investigated (1) 6:2,17 17:2,13,15;21:9; 32:5;39:9;54:5 29:5,15;30:13; 25:5 judgment (2) 22:24;23:17,21,25; implicates (2) 31:20;33:11;36:17, investigation (1) 27:15;28:3 27:5;29:11;49:3 45:7;53:21 17;48:1;49:6;50:14 37:1 judicial (1) Kyrgyz (81) implied (1) initial (3) Investment (3) 18:13 6:24;7:5;8:16;9:2, 40:12 7:2;60:24;61:11 18:8;23:15;26:8 July (1) 7,12;10:8,13,16,21; importance (1) initiated (1) involuntarily (1) 62:7 11:4,13,14,23;12:3, 40:24 40:14 17:5 jump (1) 4,17;13:20;15:19,23; important (9) injunction (4) involve (1) 38:1 16:15,25;17:3,16,22; 13:7;25:19;27:14; 29:1,8,14,17 57:1 jumped (1) 18:2,13;19:14;20:21, 37:12;38:24;39:1; insolvent (1) involved (4) 52:13 25;21:4,20,24;22:7, 42:25;43:5;46:6 26:23 13:10,11;25:4; June (3) 12,22;23:3,5,20,23; importantly (3) instead (1) 57:22 16:13;23:16;29:13 24:4,18,19;25:2,9, 23:23;24:6;42:21 22:6 involvement (3) jurisdiction (3) 13,14,17,18;26:2,4, imposed (1) instrumentalities (1) 24:23;29:9;44:16 9:23;10:12;54:23 19,21;27:18,19;28:2, 56:21 10:14 involves (1) jurisdictions (3) 6,10;29:7;31:6,9; impossible (1) instrumentality (1) 45:5 32:21;54:4;55:7 32:1;34:19,23;35:13, 47:17 35:13 involving (1) jurist (1) 21;36:14,22;39:10, in- (1) integral (1) 56:5 10:19 11,13,14,24;40:4,5; 25:1 44:3 ipso (1) JUSTICE (2) 41:13;42:13,18;43:9, inability (1) intend (1) 54:22 5:11;29:2 11,20 41:22 42:11 irreparable (1) justification (1) Kyrgyzaltyn (27) inappropriate (1) intended (1) 46:11 55:13 15:20,21,25;16:4, 58:17 58:7 issue (6) 6,6,14;21:1,18,21, Inc (1) intention (1) 26:22;53:5;56:14; K 25;22:7,10,12;23:11; 49:11 58:14 57:13,18,20 28:20;29:7,20;30:2, incident (1) intercepted (1) issued (5) KAYE (1) 6,7;32:1;35:12; 27:12 10:7 24:20,22;25:6; 5:2 36:15,23;58:21; include (2) intercompany (1) 26:2;29:8 keep (3) 60:11 26:19;45:1 23:22 issuer (1) 29:13;34:9;35:24 Kyrgyzstan (12) including (6) interest (10) 12:21 KGC (13) 5:3;10:9;39:9,15; 7:6;12:16;18:19; 21:2,21,22;22:1,2, issues (17) 11:5,6;16:18; 40:6,20;43:16;44:1, 25:4;41:15;48:2 3,17,18,19;45:7 10:4;11:24,24; 21:21;25:5,13,17; 5,7,23;45:3 inconsistent (1) interesting (1) 13:8;21:11;29:15; 26:3;27:8;28:5,12, 34:22 34:12 30:19;31:4;33:4; 17;29:20 L incorporate (1) interests (1) 38:23;39:2;42:10; KGC's (1) 60:3 12:16 45:11;46:8;51:16; 16:18 lack (2) incorporated (1) interfacing (1) 55:20;57:10 kidnapping (1) 43:17;45:24 39:12 38:13 item (9) 17:11 lanes (1) incorrect (1) interim (1) 49:1;50:4,4,5; kind (5) 54:17 27:10 17:22 51:7,24,24;53:16,17 7:16;19:6;30:18; language (4) incorrectly (1) internal (1) 35:14;37:11 47:14;52:16;57:3, 34:15 39:13 J Kirghiz (1) 17 increased (1) international (15) 11:17 large (5)
Min-U-Script® eScribers, LLC | (973) 406-2250 (7) illiquid - large [email protected] | www.escribers.net 21-11051-lgb Doc 90-1 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 1 KUMTOR GOLD COMPANY CSJC and Pg 75 of 81 KYRGYZ REPUBLIC June 8, 2021
13:2,4;14:8,10,11 8:18;11:21;33:17; 12:8 maybe (7) mine-owning (1) largest (1) 34:13 lost (1) 18:24;33:11;47:2; 21:22 11:13 liabilities (1) 42:9 52:4;55:17,21;61:3 minerals (1) last (11) 50:7 lot (7) mean (2) 16:2 7:25;8:4;9:6;10:6; liability (1) 15:21;32:20; 18:3;40:16 mines (1) 16:20;29:13;30:17; 52:8 33:23;34:2;46:5; meaningful (1) 8:19 36:9;45:19;53:16; limitation (1) 48:1;54:9 45:16 minimal (1) 61:4 52:8 lots (1) means (1) 34:8 later (7) liquidate (1) 32:19 42:18 mining (4) 6:11;13:8;25:1; 22:16 meant (1) 12:16;13:6,9; 28:2;45:6;61:7,15 liquidation (2) M 23:25 58:21 latest (1) 43:8,11 measures (1) MINTZ (35) 61:18 Lisa (1) Madison (1) 54:24 6:22,23;19:4,4,25; Latin (1) 6:2 5:4 melted (1) 20:16;34:1;35:11; 54:19 list (4) maintain (1) 15:8 37:4,10;38:1,15,16; laughable (1) 33:20;40:17; 51:10 member (2) 46:21,22;48:9;49:16, 35:9 51:11;59:4 major (3) 11:16;29:6 20;53:19;55:17,20; law (31) listed (2) 18:9;23:19;35:3 mention (1) 57:2;58:2,4;59:1; 7:6;9:16;11:4; 12:18;59:4 making (3) 58:2 60:7,9,11,13;61:21, 20:7;24:1,7;26:13; listening (1) 35:14;46:4;61:22 mentioned (16) 24;62:20,21;63:9,19 27:13;28:8;31:25; 61:3 management (5) 11:20;12:18; Mintz's (9) 39:9,9,10,13,14,24; lists (1) 28:17;29:10; 29:19,19,22;40:4; 10:14;34:25; 40:5,11,23;41:4,13; 50:8 39:20;41:6;42:14 41:1;42:13,18; 49:24;50:21;51:18; 42:13,18;43:9,11,21; litany (1) manager (9) 43:23;44:20;45:19; 52:25;53:11;56:24; 44:10;47:2,14,22; 54:21 20:4;28:21;29:16; 47:14;48:3,13;52:4 60:1 55:7 litigation (4) 32:2,15;34:14;39:18, metals (1) miracle (1) laws (8) 30:23,25;44:12; 24;42:16 16:2 8:21 10:12;23:23,25; 51:2 managers (3) meters (2) mired (1) 24:3,10;28:24; little (5) 25:5,14,14 8:18;14:4 51:1 39:14;54:3 8:8,13;11:1;17:9; manner (4) might (19) missing (4) lawsuit (3) 24:19 31:13;34:22; 13:12;18:24; 36:9,9,13;52:14 27:17,19,23 LLP (1) 43:15;51:12 32:17,24,25;33:16, mixed (2) lay (2) 5:2 many (2) 17;34:11;35:22; 14:18,25 37:12;42:11 loaders (1) 8:21;12:8 36:2;46:20;48:18; model (2) leadership (1) 14:11 March (1) 51:2;52:5;55:15,21; 55:6,7 31:18 local (1) 27:17 57:1,2;63:3 models (1) least (2) 26:17 Mario (1) mill (1) 54:18 17:5;63:6 located (17) 35:17 14:14 modification (1) leaving (1) 8:17;11:12,14,21; market (2) million (6) 37:22 25:14 12:15,23;15:7;36:17, 15:17;22:14 12:11;26:4;29:21; modify (1) led (1) 18,24,25;40:6,19; marketed (1) 30:4,14;36:8 56:23 25:22 44:5,5,7;48:24 21:4 millions (1) modifying (1) leeway (1) location (1) markets (1) 10:1 53:9 61:8 21:10 16:7 mind (2) moment (3) left (1) locations (1) masks (1) 7:18;62:4 20:3;31:19;50:12 17:4 14:13 12:9 mine (78) monetize (1) legal (3) logistical (1) material (1) 8:16,16,19,20,22; 21:1 18:15;26:24;28:23 8:20 40:10 9:1;11:6,7,15,20,21; money (3) legally (1) long (4) matrix (2) 12:1,2,6,8,12,22,23, 10:10;16:23;44:3 54:15 23:19;53:23,23; 51:8,10 25;13:3,10,16,19,19, monitoring (1) legislation (1) 59:23 matter (10) 21,25;14:22;15:10, 27:9 27:6 longer (1) 7:2;41:21,22;42:4, 16,18;16:5,22;17:2, monopoly (1) legislative (1) 19:17 18;44:23;45:15,17; 13,15;18:3,3;20:3; 15:23 22:23 longstanding (1) 57:23,25 21:2,9,10,12;22:1,4, month (4) legislature (2) 10:11 matters (1) 6,14,15,19,24;23:19, 16:20;29:25;30:3; 19:15;28:8 look (3) 57:24 21,24,25;25:5;26:15, 36:9 legitimate (3) 34:3;40:17;58:9 May (25) 22;27:5,7,11;28:5,9, monthly (1) 42:4;45:24;46:1 looked (2) 6:15;9:6;20:2; 17,22;29:7,11;31:10, 49:6 legitimately (1) 34:8;52:12 26:2;27:13,25;28:2, 11,13,18,20;32:2; months (5) 57:14 looking (4) 7,14,16;30:2,7;45:6; 34:21,23;35:22; 9:6;25:8,24;26:25; lets (1) 22:23;30:12;32:9; 47:17;55:4;56:21; 36:20,20;39:19;56:7 56:4 57:16 62:6 57:18;58:2;59:11,21, mined (5) moratoriums (1) level (4) looks (1) 22;61:9,10,14,14 13:9,12,24,25;14:1 54:5
Min-U-Script® eScribers, LLC | (973) 406-2250 (8) largest - moratoriums [email protected] | www.escribers.net 21-11051-lgb Doc 90-1 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 1 KUMTOR GOLD COMPANY CSJC and Pg 76 of 81 KYRGYZ REPUBLIC June 8, 2021
more (6) 35:18,22,23;36:19, 52:1 officer (2) options (1) 17:9;23:7;33:8; 21;37:2;46:7,10; notifying (1) 20:6;24:23 30:21 51:2;54:15;61:10 51:21;54:11;59:18; 51:12 officials (1) order (38) morning (5) 60:3,7;62:25 notwithstanding (5) 18:2 7:18;9:23;29:11; 6:2,17,22;7:9;8:2 needed (1) 25:24;39:23; offtake (3) 30:3,8;33:18;49:12, Most (7) 12:4 52:17;56:12;57:4 16:9,10,13 14;50:1,20;51:4,21; 9:15;10:5;23:23; needs (2) number (14) offtaker (2) 52:12;53:10,12;54:6, 24:6;36:25;46:13; 41:14;43:19 6:14;13:2;38:4; 16:4;29:24 14;55:5,14,23,24; 54:4 negotiated (2) 48:24;49:1,2;50:4,5; often (1) 56:11,11;57:5;58:9, motion (25) 9:15;24:7 51:7,8,24,25;53:17, 55:1 12,16,22,23;59:2,2,6, 38:23;42:12;46:8, negotiation (1) 18 Once (5) 9,14,18,24;60:2,3 16,17,20,24;47:1,3, 24:24 NY (1) 14:6,10;15:7; orders (5) 12,25;49:19,25;50:6, neither (1) 5:15 26:22;29:25 26:2,11;45:16; 12;51:3,7,8,9,17,20; 41:6 one (24) 56:3;59:3 53:17;58:18;62:25; New (37) O 7:23;8:19;10:4; ore (2) 63:3 5:15;9:7,11,13,13, 26:1,2;27:2;34:9; 14:13,20 motions (11) 13,15,16,19,21;10:1, object (1) 35:3,22;37:22;38:5; organization (1) 33:10;37:6,13,21; 12,13;12:19;16:18, 39:21 47:16;48:14,17; 47:22 46:10,12,13;48:6,22; 23;22:8;23:17;24:7, objected (1) 49:7;52:3,13;53:10; organized (2) 49:21;53:22 8,11;26:13;27:4; 38:21 55:2,9,18,21;59:15; 28:24;40:5 move (5) 28:25;29:25;30:4; objection (13) 60:9 original (2) 17:9;41:4,14; 31:24,25,25;32:24; 19:2,5;49:17,24; one- (1) 21:3,15 46:25;47:24 35:18;36:10,18; 50:22;51:19;52:25; 14:20 others (1) moves (1) 40:10,12;44:10;56:7 53:12;55:18,18; one-hundred (1) 6:25 38:24 next (8) 56:9;59:16;60:1 12:13 otherwise (5) moving (1) 18:7;27:14;30:16; obligation (1) ones (2) 26:24;56:13; 48:6 35:17;37:7;50:4; 36:4 24:25;48:3 57:13;59:21;62:20 much (16) 51:7,24 obligations (1) only (8) ought (1) 13:24;28:1;33:19; nice (1) 26:24 6:4;9:4;13:20; 61:8 35:23;37:18;38:11; 10:18 observations (1) 15:16;22:16;28:4; ounces (1) 40:9;44:2;48:12; nicely (1) 39:5 37:22;60:13 12:11 51:5;59:5;60:17,19; 8:3 obtain (2) Ontario (4) out (20) 62:13;63:10,16 night (1) 9:23;55:5 12:20;28:23;29:1, 9:22;13:18;14:22; multi-front (1) 7:25 obtained (1) 8 18:18;20:24;21:7; 30:23 none (5) 12:12 open (1) 22:9;32:20;35:23, must (2) 40:17,18;45:9,25; obviously (29) 12:10 25;36:11,21;42:11; 12:9;16:18 46:10 6:6,10;9:11;20:12; operate (6) 48:22,23;49:7; mute (1) non-US (1) 25:11;32:11;33:2,4, 8:16;11:19;27:12; 52:13;59:2,15;62:23 6:8 53:25 5,15;34:23;40:19; 31:10,12;36:20 outline (1) myself (3) nor (1) 43:12;46:23,25;47:8, operated (2) 41:11 32:17;33:24;50:23 41:7 15,17;48:1;50:22,24; 26:16;27:11 output (2) normally (1) 51:17,18;53:13;55:7, operates (2) 15:9,16 N 33:3 15;59:4,10;60:7 11:6;16:3 outside (2) norms (3) occur (2) Operating (11) 12:4;32:21 name (2) 18:16;26:17;34:22 43:3,4 6:21;8:15;11:4; outstanding (1) 15:21;48:10 notably (1) occurred (2) 12:10;16:11,12; 37:22 nationalize (1) 45:1 24:14;43:22 31:14,17;49:6; over (20) 35:7 note (5) o'clock (2) 51:13;54:17 8:3,18,18,22;9:14, nationalized (1) 7:2;10:17;18:22; 37:20;38:9 operation (7) 25;12:11,24,25; 17:15 25:19;55:15 October (2) 8:20,23,25;13:5; 13:23;16:8,25; nature (2) noted (5) 17:9,20 21:12,13;26:23 17:25;25:16;26:3; 17:7;22:24 21:9;27:1;33:3; oddly (1) operational (2) 28:1;41:6;48:14; near (2) 48:23;52:2 26:18 27:9;34:22 54:8,12 38:25;39:3 notes (1) off (3) operations (4) overrule (3) nearly (1) 18:12 13:21;48:13;61:1 11:9;32:24;40:19; 51:19;59:16;60:1 12:22 Notice (4) offer (2) 44:4 overruling (1) necessarily (1) 24:20,22;25:6; 18:23,24 operative (1) 53:11 63:5 56:20 offered (1) 28:14 oversight (1) necessary (5) noticeable (1) 30:8 operator (1) 18:19 12:6;50:14;56:22; 48:20 Office (9) 28:5 overturned (1) 58:11;63:4 notices (2) 5:12,13;38:13; opportunity (4) 17:21 need (17) 48:21;54:19 50:19;51:14;52:3, 37:5,10;38:17; owed (3) 6:6;33:12;34:7; noticing (1) 21;53:4;63:13 46:16 29:4;33:7;59:5
Min-U-Script® eScribers, LLC | (973) 406-2250 (9) more - owed [email protected] | www.escribers.net 21-11051-lgb Doc 90-1 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 1 KUMTOR GOLD COMPANY CSJC and Pg 77 of 81 KYRGYZ REPUBLIC June 8, 2021
own (4) 16:17 31:11;41:23;45:2 precipitated (2) proceed (4) 22:16;35:17;36:2, paying (2) plans (1) 26:25;27:8 20:16;37:9;38:20; 16 26:20,20 13:22 predecessor (1) 43:15 owned (8) payment (3) play (2) 20:22 proceeding (7) 12:13;15:19,23; 10:5;30:8,11 9:8;54:2 prejudice (1) 30:25;40:14; 21:21;22:4,7;23:12; payments (5) please (1) 50:10 45:21;52:18;53:21; 49:10 29:25;33:5,6,7; 6:15 preliminary (4) 55:6;58:25 owner (2) 36:5 pleasure (1) 29:1,8,14,17 proceedings (3) 11:7;32:2 pending (3) 6:18 premature (1) 26:11;32:4;63:20 owners (1) 29:11,14;45:20 point (13) 41:9 proceeds (5) 9:1 people (6) 18:24;21:6;24:12; prepare (1) 9:18;10:2;16:16; ownership (5) 12:25;13:2;25:3; 27:22;30:10;34:9; 50:14 29:21;30:9 21:25;22:1,17,18, 26:21;33:7;61:3 35:11;44:17;45:5, pre-petition (3) process (8) 19 percent (4) 19;48:5;57:1;60:11 33:5,6,7 13:6,22;14:16; owning (2) 12:13;15:12;22:8; pointed (1) PRESENT (7) 15:5,14;16:16,19; 21:21;22:6 49:10 32:20 5:21;8:10;18:22; 20:9 oxygen (1) perfect (1) points (3) 19:6;28:6;36:25; produced (2) 12:9 61:20 23:19;35:3;48:8 46:7 15:18;21:14 perhaps (4) politely (1) presentation (6) product (3) P 7:17;47:21;55:21; 16:25 7:24;20:18;29:18; 8:22;15:10,11 58:16 political (2) 32:11;38:3;49:24 production (1) page (1) period (6) 17:17;18:14 presented (5) 21:13 18:7 9:3;23:10;24:16; poor (1) 21:10;23:5;46:17, profitable (5) paid (2) 26:16;61:15,16 18:17 18;58:7 9:1,1,1,2;26:18 31:18,20 permitting (1) popped (1) president (3) project (3) papers (3) 47:21 9:22 17:10,22;27:1 9:12;15:15;23:17 32:12;50:23;61:2 person (1) PORTER (3) presidential (1) Promotion (1) paragraph (2) 20:2 5:2;6:23;34:20 17:25 26:8 52:7;53:5 perspective (2) portion (1) presidents (1) proper (1) parliament (4) 34:8;42:8 22:6 17:4 20:8 22:22;23:5;27:3; petition (4) pose (1) presume (1) properly (2) 39:8 42:17;43:2;50:9; 42:3 52:16 43:19;47:20 part (2) 54:3 position (1) pretext (1) property (6) 11:17;20:25 petitions (3) 43:12 25:19 8:17,17;35:17,19, participants (1) 41:7,12;43:19 positioned (1) prevented (1) 20;36:3 31:24 phone (1) 36:11 25:14 propose (1) particular (6) 38:10 possibilities (1) preview (1) 49:2 9:21;13:25;14:3,6; photograph (1) 47:8 25:21 proposed (2) 18:1;23:22 28:18 possible (2) previously (1) 6:19;19:9 particularly (2) physical (1) 46:21;56:13 28:12 prosecute (1) 9:6;18:10 21:10 potentially (1) primarily (1) 36:22 parties (13) picture (1) 33:13 44:6 Protection (2) 6:4;11:11;16:9,14; 12:7 powder (1) primary (1) 26:8;34:6 18:25;19:13,16; pictures (1) 14:24 55:9 protests (1) 24:3;26:4;42:5; 13:15 power (2) principal (1) 17:13 44:12;45:23;56:15 piece (1) 32:4,18 11:19 protocol (1) parties' (2) 35:17 powers (1) principles (1) 37:24 44:18;45:22 place (23) 17:25 43:23 provide (5) parties-in-interest (1) 8:23;9:5,7,25; practical (4) prior (4) 20:25;35:14;43:7; 50:17 10:19;14:10;16:19; 41:22;44:23; 17:19;31:13; 55:2;60:7 party-in-interest (1) 17:1,12,24;21:16,17; 45:15,17 49:16;57:24 provided (1) 56:20 22:21;23:10;28:14; practicalities (1) privileges (1) 48:2 passed (4) 29:14;31:2,14,22; 42:2 7:4 provides (3) 27:13;28:8;39:9, 37:2;40:21;44:17; practice (1) probably (3) 26:9;29:22;49:11 15 57:18 54:13 7:16;46:17;61:13 providing (1) passes (2) places (1) practicing (1) problem (3) 26:20 14:25;15:6 33:17 53:24 18:18;61:22,24 provision (7) past (6) plainly (1) practitioners (1) problems (1) 24:9;43:5,9;52:8, 8:3;17:8;18:1; 41:4 54:9 33:13 17;53:10;56:19 25:23;26:25;48:14 plaintiffs (1) precedent (2) procedure (1) provisions (4) pay (2) 28:3 56:3,6 51:13 44:25;54:22; 35:20,23 plan (6) preceding (1) procedures (1) 56:10;60:4 payable (1) 13:19,19,21; 59:11 54:18 prudent (1)
Min-U-Script® eScribers, LLC | (973) 406-2250 (10) own - prudent [email protected] | www.escribers.net 21-11051-lgb Doc 90-1 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 1 KUMTOR GOLD COMPANY CSJC and Pg 78 of 81 KYRGYZ REPUBLIC June 8, 2021
34:3 63:5,6 59:20 11:14,14,17,23;12:3, 24:15,15,17,25; public (2) ready (2) related (3) 4,17;13:20;15:20,24; 25:22,25;42:4,8; 22:3,14 62:23;63:8 6:15;10:2;21:16 16:25;17:11,17,22; 45:25;46:1 publicly-traded (5) real (1) relates (2) 18:2;19:14;23:11, result (9) 12:14,17;22:2,4,18 11:9 25:19;52:7 20;24:4,18,19;25:2, 9:5;28:12;29:6; purchased (2) really (8) relating (7) 9,13,15;26:22;31:9; 30:5,18,22;35:9; 15:18;29:23 11:8;21:14;42:4; 9:15;11:24;15:15; 32:1;34:19,24; 36:10;42:13 pure (2) 46:14;48:4;56:1; 17:13;18:2;23:25; 35:13;36:15,22; resulted (1) 15:12;16:6 63:1,11 28:22 60:14 23:13 purity (1) reason (5) relationship (4) request (5) resurrect (1) 15:11 9:4;39:21,25; 16:8;17:1;20:21; 38:9;50:10;51:9; 36:1 purported (3) 43:16,17 34:13 56:20;60:20 resurrected (1) 31:6;40:25;41:15 reasonable (1) relatively (1) requested (1) 25:23 purporting (1) 40:22 22:1 60:1 retain (1) 26:3 reasons (1) release (2) requesting (1) 48:15 purpose (4) 43:21 25:22;26:12 50:6 retained (1) 42:7;45:25;46:1; reassert (1) released (2) requests (2) 48:21 55:9 28:11 27:24;36:1 41:9;56:24 retention (1) purposes (5) recall (1) releases (1) require (1) 53:7 20:4;32:16;42:1; 61:1 26:9 15:25 review (2) 46:9;59:21 received (1) relied (1) required (1) 13:21;18:6 pursuant (5) 20:13 24:3 43:2 reviewed (1) 7:6;31:1,2;42:7; recent (1) relief (16) requirements (1) 51:14 57:8 10:5 32:8;33:12;34:8, 42:23 revised (2) pursuing (1) recognition (1) 18;36:19,21;41:9,25; requires (1) 53:12;60:3 27:23 55:6 44:22;45:16;46:14; 16:16 revolutions (1) put (5) recognizable (1) 56:21,23;58:11,13; reserve (3) 17:7 14:7,11;16:25; 54:15 60:18 10:16;20:18;55:7 right (22) 52:16;54:14 recognize (3) remained (1) resigned (1) 7:20;11:4;16:10; puts (1) 46:4,12;54:24 21:16 28:21 18:25;20:12,18; 13:18 recognized (1) remaining (1) resolution (2) 21:9;28:13;30:23; 16:1 22:18 26:10;47:11 35:19;36:16;47:23; Q record (6) remains (1) resolutions (2) 48:14;49:23;52:24; 6:6,12;7:3,14; 9:3 42:17,21 55:2,8,9,19;61:6; quickly (2) 51:18;53:8 remember (2) resolve (1) 62:3,22 17:10;38:1 records (2) 13:11;28:7 45:22 rights (7) quite (1) 32:25;50:13 remind (1) resolves (1) 7:4;10:16;39:16; 53:23 Red (3) 61:4 41:10 41:6;44:18;45:14; quote (1) 24:20,21;25:6 remnant (1) resolving (1) 54:4 18:7 redirect (2) 11:9 44:13 rigs (1) 10:10;20:19 renders (1) respect (23) 14:4 R refer (1) 42:16 9:10;10:15,16,18; rock (8) 15:21 reorganization (4) 11:10,24;17:2,3; 14:8,12,12,13,16, race (1) reference (2) 41:23;43:7,10,13 19:8;23:22;27:21; 18,18,19 8:5 20:24;44:2 report (1) 29:20;31:4,9;33:17; role (2) raise (4) referenced (1) 49:7 34:12,18;36:4; 32:15;39:20 34:12;52:11; 40:8 reports (1) 37:23;44:25;48:15, roughly (1) 55:20;57:2 references (1) 49:6 22;58:25 29:25 raised (6) 44:10 represent (2) respectfully (3) Rule (3) 10:4;11:24;35:11; referred (1) 20:5;41:2 38:9;48:9;49:14 49:11;53:2;55:6 38:18;53:19;55:18 41:4 representations (1) respond (2) ruled (1) raising (2) refined (3) 24:2 48:8;58:24 28:3 37:17;39:2 16:1,6;29:23 representative (6) responsible (3) rules (2) rather (2) refinery (1) 5:22;19:10,18,21; 19:15;34:15,24 6:4;31:3 22:19;61:15 15:9 20:2;28:20 restated (2) run (6) reached (1) refining (1) representatives (4) 16:12;23:15 9:19;34:21;39:1; 21:13 15:22 40:25;41:8,15; restating (1) 42:10;53:13;54:9 reaction (1) regarding (1) 42:19 54:21 running (3) 35:1 38:20 representing (2) restraints (1) 20:2;25:5;55:11 read (5) regime (3) 35:2;60:10 56:21 32:12;49:25; 9:8;23:20;24:17 Republic (44) restructuring (21) S 50:23;51:17;53:7 regulatory (4) 6:24;7:5;8:16;9:2, 21:17,23,24;22:20, readily (2) 18:15;57:10,21; 7,12;10:9,13,16,21; 21;23:4,6,7,8,9,14; Sadyr (1)
Min-U-Script® eScribers, LLC | (973) 406-2250 (11) public - Sadyr [email protected] | www.escribers.net 21-11051-lgb Doc 90-1 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 1 KUMTOR GOLD COMPANY CSJC and Pg 79 of 81 KYRGYZ REPUBLIC June 8, 2021
17:10 seizure (1) shift (1) someone (3) stated (1) safe (1) 28:9 14:6 32:23;47:9,19 58:13 8:23 selection (2) show (2) sometimes (1) Statement (3) safety (1) 40:13;44:15 43:22;54:10 15:12 18:8;56:16,18 27:9 sell (1) shows (1) somewhat (2) statements (2) sale (4) 22:13 12:7 13:12;38:21 18:18;50:15 16:12,16;29:21; sells (2) shut (1) soon (1) state-owned (1) 30:9 15:25;16:7 27:8 54:2 58:21 sales (3) senior (1) sides (1) sorry (2) States (8) 9:18;10:2;16:17 28:17 63:4 18:3;30:17 5:12;7:10;36:24, same (8) sense (2) sign (2) sort (2) 25;44:9;45:10;53:4; 25:20,21;28:7,10; 40:22;58:7 13:21;47:10 32:16;53:24 54:2 33:17;46:21;48:18; sensitive (1) signed (2) sorts (1) statute (2) 52:5 14:20 30:3;48:13 35:14 58:16,16 sanctions (1) sent (2) significantly (1) sought (3) stay (19) 27:21 48:22,23 17:25 27:8,21;29:1 32:19;34:6;46:16; sat (1) sentence (1) silver (1) sounds (2) 49:18,22;53:17,22; 26:5 56:11 16:12 33:12;50:25 54:1,17,22;55:4; satisfactory (1) separated (2) similar (1) Southern (3) 57:3,7,12,16;58:8, 52:21 15:2,3 18:18 36:10;54:19;56:6 10,23;59:12 satisfy (1) September (2) simplified (1) Sovereign (10) stayed (1) 26:23 26:6,9 23:21 7:7;35:1,2,3,4,8,8; 57:6 saw (1) series (2) simply (1) 44:25;45:4;59:21 staying (1) 33:20 21:19;22:23 34:20 Sovereignty (1) 57:6 saying (8) service (2) single (1) 44:20 stays (1) 18:15;35:21; 28:10;48:23 16:17 Soviet (2) 54:5 47:16,16;52:16; session (1) site (5) 8:24;11:17 steel (1) 56:11,19;60:12 6:3 13:16,25;14:8,22; speak (3) 15:7 schedule (2) set (6) 31:19 19:18;37:5;40:2 step (3) 61:9;62:25 13:7,22;18:16; sitting (3) speaking (2) 14:2;34:5,5 scheduled (1) 20:20;23:4;60:20 9:11;35:2;61:1 6:7,11 steps (1) 17:23 SETH (2) situation (3) specific (1) 13:14 schedules (4) 5:8;6:24 9:9,10;36:19 32:8 still (4) 50:5,7,8,14 setting (1) sky (1) specifically (1) 20:23;23:12; scheduling (1) 13:18 9:22 43:7 24:13;36:6 62:20 settled (1) slide (8) specify (1) stock (4) SCHOLER (1) 26:15 7:24;12:7;16:21; 27:22 11:3;12:19,19; 5:2 settlement (2) 26:1;27:14;28:19; spent (2) 28:25 SCHWARTZ (10) 26:5,6 30:16,17 33:23;38:6 Stockholm (4) 5:17;7:9,10,12; seven (2) slides (1) spinout (1) 31:2;40:15;44:15; 37:15,16,18;38:12; 24:16;25:1 10:25 22:5 45:21 48:12;52:11 seventy (1) slim (1) spun (4) StoneX (7) sea (2) 15:12 40:7 20:24;21:7;22:9; 16:1,1,7;29:24; 8:18;11:21 several (9) slurry (2) 39:7 30:8;32:24;36:17 SEC (1) 13:14,20;17:4,4; 14:25,25 stabilized (1) stop (1) 12:21 18:1;25:8,13,16;38:6 smart (1) 23:24 32:7 second (8) severe (1) 54:13 staff (5) story (1) 19:1;22:20;23:6,7; 31:14 Socialist (1) 8:3;12:24,24;13:1; 10:24 43:4,17;54:10;56:18 severely (1) 11:17 63:12 Strategic (1) second-day (4) 25:12 sold (3) stand (1) 26:7 34:10;60:20;61:9; shall (2) 15:9,17;29:24 39:17 Street (2) 62:4 7:4;57:5 sole (3) standard (5) 5:4,14 section (7) SHARA (3) 16:3;17:16;29:24 51:9,13;52:12; stretch (1) 14:3;44:24;45:1, 5:18;7:11;53:3 solely (1) 54:17,20 40:22 13;49:9;54:2,14 shareholder (1) 17:17 standing (6) Stretto (5) Securities (1) 30:20 solution (5) 49:17;50:21; 37:23;48:16,20, 12:20 shareholders (6) 14:23;15:2,2,3,6 51:18;52:25;53:12; 23;52:1 security (1) 22:9;26:18;41:5; solvent (2) 55:18 stripped (1) 22:18 42:14,22,22 8:14,14 start (2) 15:3 seek (3) shares (1) somebody (2) 37:6;48:5 struck (1) 34:17;49:5;50:25 12:18 54:10;57:18 State (9) 13:12 seized (1) sheets (1) somehow (1) 9:13;18:5,8,10,12; structure (1) 28:16 14:8 47:5 24:8,11;28:10;35:18 21:20
Min-U-Script® eScribers, LLC | (973) 406-2250 (12) safe - structure [email protected] | www.escribers.net 21-11051-lgb Doc 90-1 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 1 KUMTOR GOLD COMPANY CSJC and Pg 80 of 81 KYRGYZ REPUBLIC June 8, 2021
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Min-U-Script® eScribers, LLC | (973) 406-2250 (13) structured - USSR [email protected] | www.escribers.net 21-11051-lgb Doc 90-1 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 1 KUMTOR GOLD COMPANY CSJC and Pg 81 of 81 KYRGYZ REPUBLIC June 8, 2021
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Min-U-Script® eScribers, LLC | (973) 406-2250 (14) US-style - 9 [email protected] | www.escribers.net 21-11051-lgb Doc 90-2 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 2 Pg 1 of 11
EXHIBIT 2 21-11051-lgb Doc 90-2 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 2 Pg 2 of 11 21-11051-lgb Doc 90-2 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 2 Pg 3 of 11 21-11051-lgb Doc 90-2 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 2 Pg 4 of 11 21-11051-lgb Doc 90-2 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 2 Pg 5 of 11 21-11051-lgb Doc 90-2 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 2 Pg 6 of 11 21-11051-lgb Doc 90-2 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 2 Pg 7 of 11 21-11051-lgb Doc 90-2 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 2 Pg 8 of 11 21-11051-lgb Doc 90-2 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 2 Pg 9 of 11 21-11051-lgb Doc 90-2 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 2 Pg 10 of 11 21-11051-lgb Doc 90-2 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 2 Pg 11 of 11 21-11051-lgb Doc 90-3 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 3 Pg 1 of 11
EXHIBIT 3 21-11051-lgb Doc 90-3 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 3 Pg 2 of 11 21-11051-lgb Doc 90-3 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 3 Pg 3 of 11 21-11051-lgb Doc 90-3 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 3 Pg 4 of 11 21-11051-lgb Doc 90-3 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 3 Pg 5 of 11 21-11051-lgb Doc 90-3 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 3 Pg 6 of 11 21-11051-lgb Doc 90-3 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 3 Pg 7 of 11 21-11051-lgb Doc 90-3 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 3 Pg 8 of 11 21-11051-lgb Doc 90-3 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 3 Pg 9 of 11 21-11051-lgb Doc 90-3 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 3 Pg 10 of 11 21-11051-lgb Doc 90-3 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 3 Pg 11 of 11 21-11051-lgb Doc 90-4 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 4 Pg 1 of 7
EXHIBIT 4 21-11051-lgb Doc 90-4 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 4 Pg 2 of 7 21-11051-lgb Doc 90-4 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 4 Pg 3 of 7 TRANSLATION FROM RUSSIAN
LAW OF THE KYRGYZ REPUBLIC
Amending certain legislative acts of the Kyrgyz Republic (Law of the Kyrgyz Republic On Joint-Stock Companies and the Criminal Code of the Kyrgyz Republic)
Adopted by the Jogorku Kenesh of the Kyrgyz Republic May 6, 2021
Article 1.
The Law of the Kyrgyz Republic On Joint Stock Companies (Bulletin of the Jogorku Kenesh of the Kyrgyz Republic, 2003, No. 6, Art. 240) shall be amended as follows:
Chapter VI shall be supplemented by Article 651 which shall read as follows:
“Article 651. Temporary external management
1. In the event of a suspension of the right to subsoil use on the grounds of violation by the company of the subsoil protection and(or) environmental and industrial safety requirements established by the legislation of the Kyrgyz Republic posing an immediate threat to the life or health of persons working or living in the zone of influence of the operations, and failure by the company to take the necessary measures to eliminate them, the powers of the current management bodies of the company shall be suspended for the period of the suspension of the right to subsoil use.
In such cases, the management bodies may not make decisions related to the operational (administrative, business and/or financial) activities of the company other than decisions related to the elimination of the threats to the life or health of persons working or living in the zone of influence of the operations that had served as the ground for the suspension of the right to subsoil use.
2. In order to ensure the continuation of the company’s economic activity, the Cabinet of Ministers of the Kyrgyz Republic shall introduce temporary external management for the duration of the decision to suspend the subsoil use right in accordance with paragraph 1 of this Article.
If temporary external management is introduced, the Chairman of the Cabinet of Ministers of the Kyrgyz Republic shall appoint the temporary external manager pursuant to the procedure determined by the Cabinet of Ministers of the Kyrgyz Republic.
Both an individual and a legal entity may be appointed as the temporary external manager of the company’s operational activity.
3. The temporary external manager shall be vested with all the powers of the executive body of the company by virtue of the company’s charter, this Law, and other laws and regulations of the Kyrgyz Republic applicable to the management of joint-stock companies.
All the bank accounts of the company shall, for the period of suspension of the right to subsoil use, be placed under the full management of the temporary manager regardless of the servicing bank’s jurisdiction. 21-11051-lgb Doc 90-4 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 4 Pg 4 of 7 TRANSLATION FROM RUSSIAN For the duration of the temporary external management, the remuneration of mid-level and low-level employees must be paid in a timely manner. For these purposes, the temporary external manager may dispose of the company’s financial resources for the payment of employees’ salaries. The management bodies of the company, whose powers have been suspended, are prohibited from interfering with the payment of employees’ salaries in any way whatsoever.
4. The introduction of temporary external management shall be notified to the authorized state body for state registration of legal entities.
5. During the period of temporary external management of the company, the general shareholders’ meeting and the board of directors shall have no right to interfere in the day-to-day management of the company by way of direct instructions, orders or any other direction in the form of a request or recommendation addressed to the temporary external manager.
6. The temporary external manager must ensure the preservation, accident-free operation and safety for people and the environment of all company property during the period of suspension of the right to subsoil use.”
Article 2
The Criminal Code of the Kyrgyz Republic (Bulletin of the Jogorku Kenesh of the Kyrgyz Republic, 2017, No. 2 (2), Art. 79) shall be amended as follows:
The Code shall be supplemented by Article 2331, which shall read as follows:
“Article 2331. Violation of Restrictions Imposed by Joint-Stock Companies Law
A violation of the restrictions imposed on the management bodies of a joint-stock company in the event of the introduction of temporary external management established by the law on joint- stock companies shall be punishable by category III imprisonment”.
Article 3.
This Law shall apply to joint-stock companies exercising their right to use the subsoil based on a concession agreement pursuant to the Law of the Kyrgyz Republic On Concessions and Concession Enterprises in the Kyrgyz Republic.
Article 4
This Law shall enter into force from the date of its official publication.
The Cabinet of Ministers of the Kyrgyz Republic is instructed to adopt the measures arising from this Law within a period of two months.
President of the Kyrgyz Republic S.N. Japarov [seal:] Office No. 1 of the Presidential Administration of the Kyrgyz Republic
Bishkek May 12, 2021 No. 62 21-11051-lgb Doc 90-4 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 4 Pg 5 of 7
КЫРГЫЗ РЕСПУБЛИКАСЫНЫН МЫЙЗАМЫ
ЗАКОН КЫРГЫЗСКОЙ РЕСПУБЛИКИ
О внесении изменений в некоторые законодательные акты Кыргызской Республики (в Закон Кыргызской Республики «Об акционерных обществах», Уголовный кодекс Кыргызской Республики)
Принят Жогорку Кенешем Кыргызской Республики 6 мая 2021 года
Статья 1
Внести в Закон Кыргызской Республики «Об акционерных обществах» (Ведомости Жогорку Кенеша Кыргызской Республики, 2003 г., № 6, ст. 240) следующее изменение:
главу VI дополнить статьей 65* следующего содержания:
«Статья 65'. Временное внешнее управление
1. В случае приостановления права пользования недрами по основаниям нарушения обществом требований охраны недр, экологической и промышленной безопасности, установленных законодательством Кыргызской Республики, создающего непосредственную угрозу жизни или здоровью людей, работающих или проживающих в зоне влияния работ, а также непринятия обществом необходимых мер для их устранения полномочия органов управления обществом приостанавливаются на срок приостановления права пользования недрами. В таких случаях органам управления обществом запрещается принимать решения, связанные с операционной (административно-хозяйственной и финансовой) деятельностью общества, за исключением решений, связанных с устранением угрозы жизни или здоровью людей, работающих или проживающих в зоне влияния работ, послужившей основанием для приостановления права пользования недрами. 2. В целях обеспечения продолжения экономической деятельности общества Кабинетом Министров Кыргызской Республики вводится временное внешнее управление на срок действия решения о приостановлении права пользования недрами в соответствии с частью 1 настоящей статьи. В случае введения временного внешнего управления Председатель Кабинета Министров Кыргызской Республики назначает временного внешнего управляющего в порядке, предусмотренном Кабинетом Министров Кыргызской Республики. 21-11051-lgb Doc 90-4 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 4 Pg 6 of 7
2
Временным внешним управляющим операционной деятельностью общества может быть назначено как физическое, так и юридическое лицо. 3. Временный внешний управляющий наделяется всеми полномочиями исполнительного органа общества, предусмотренными уставом общества, настоящим Законом, иными нормативными правовыми актами Кыргызской Республики в сфере управления акционерным обществом. Все банковские счета общества на время приостановления права пользования недрами независимо от юрисдикции обслуживающего банка переходят в полное управление временного внешнего управляющего. В период временного внешнего управления оплата труда работников среднего и нижнего звена должна производиться своевременно. Для этих целей временный внешний управляющий вправе распоряжаться финансовыми средствами общества для выплаты заработной платы работникам. Запрещается органам управления обществом, чьи полномочия приостановлены, воспрепятствовать в какой-либо форме выплате заработной платы работникам. 4. О введении временного внешнего управления уведомляется уполномоченный государственный орган в сфере государственной регистрации юридических лиц. 5. В период временного внешнего управления обществом общее собрание акционеров и совет директоров не имеют права вмешиваться в текущее управление обществом путем дачи прямых инструкций, приказов или иных любых указаний в виде просьбы или рекомендации временному внешнему управляющему. 6. Временный внешний управляющий обязан обеспечить содержание всего имущества общества в сохранном, безаварийном и безопасном для людей и окружающей среды состоянии в течение срока приостановления права пользования недрами.».
Статья 2
Внести в Уголовный кодекс Кыргызской Республики (Ведомости Жогорку Кенеша Кыргызской Республики, 2017 г., № 2 (2), ст. 79) следующее изменение:
Кодекс дополнить статьей 2331 следующего содержания:
«Статья 2331. Нарушение ограничений, установленных законодательством об акционерных обществах
Нарушение ограничений для органов управления акционерным обществом в случае введения временного внешнего управления, установленных законодательством об акционерных обществах, - наказывается лишением свободы III категории.».
Статья 3
Действие настоящего Закона распространяется на акционерные общества, реализующие свое право пользования недрами на основе концессионного договора согласно Закону Кыргызской Республики «О концессиях и концессионных предприятиях в Кыргызской Республике». 21-11051-lgb Doc 90-4 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 4 Pg 7 of 7
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ɉɪɟɡɢɞɟɧɬ ɄɵɪɝɵɡɫɤɨɣɊɟɫɩɭɛɥɢɤɢAªɤɚ ɧɰ ɟ ɥɹ ɪɢɹ ɫɵ ?A ɋɇɀɚɩɚɪɨɜ _³ _ɥɢ _ɚ ɬʙʏʜʥʔʚʮʟʗʮ ʶʞ
ɗȾA ɝȻɢɲɤɟɤ ɦɚɹɝɨɞɚ ʋ 21-11051-lgb Doc 90-5 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 5 Pg 1 of 10
EXHIBIT 5 21-11051-lgb Doc 90-5 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 5 Pg 2 of 10 21-11051-lgb Doc 90-5 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 5 Pg 3 of 10 TRANSLATION FROM RUSSIAN
CABINET OF MINISTERS OF THE KYRGYZ REPUBLIC
DECREE
No 7 of May 17, 2021
Approving the Procedure of appointment of a temporary external manager
For the purposes of implementing Article 65-1 of the Law of the Kyrgyz Republic On Joint-Stock Companies and in accordance with Articles 10 and 17 of the Constitutional Law of the Kyrgyz Republic On the Government of the Kyrgyz Republic, the Cabinet of Ministers of the Kyrgyz Republic decrees as follows: 1. The Procedure of appointment of a temporary external manager as contained in the annex hereto is approved. 2. The Ministry of Economy and Finance of the Kyrgyz Republic shall take all the measures arising from this decree. 3. This decree shall enter into force on the day of its official publication.
Chairman U. Maripov
21-11051-lgb Doc 90-5 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 5 Pg 4 of 10 TRANSLATION FROM RUSSIAN Annex:
Procedure of appointment of a temporary external manager
1. This Procedure determines the procedure for appointing a temporary external manager (hereinafter: “External Manager”) for the period during which temporary external management is introduced in joint-stock companies (hereinafter: “the Company”) operating in the field of subsoil use. 2. The temporary external manager’s charge is to ensure the continuity of production, business and other operations of the legal entity in circumstances where the authorized body of the Company has failed to take the necessary measures to eliminate the violation of the requirements for the protection of subsoil, environmental and industrial safety established by the legislation of the Kyrgyz Republic, thereby creating an immediate threat to the life or health of people working or living in the zone of influence of the works. 3. The external manager is appointed by order of the Chairman of the Cabinet of Ministers of the Kyrgyz Republic on the proposal of the authorized state authority for state property management. 4. The temporary external management procedure in the Company shall mean the activity as regulated by this Procedure carried out by the External Manager appointed specifically for the purposes provided in paragraph 2 of this Procedure. 5. The External Manager must meet the following requirements: 1) for an individual: - be a citizen of the Kyrgyz Republic; - have a university degree in the field of economics, law or technology; - have at least 5 years’ experience in a managerial position; - have experience in implementing projects in the field of subsoil use; 2) for a legal entity: - be legally registered in accordance with the legislation of the Kyrgyz Republic; - conduct business in consulting and/or advisory services; - have experience in implementing projects in the field of subsoil use. 6. Starting from the appointment of the External Manager and for the duration of the temporary external management, the powers of the company’s executive body shall be suspended. The temporary manager shall be vested with all the powers of the executive body of the company provided for by the charter, laws, and other regulatory legal acts of the Kyrgyz Republic regulating the activities of joint-stock companies. 7. The External Manager shall conduct the day-to-day management and the financial and economic operations of the legal entity, open a special current checking account with a banking institution, and may take the actions, including but not limited to the following: 21-11051-lgb Doc 90-5 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 5 Pg 5 of 10 TRANSLATION FROM RUSSIAN 1) create and dismiss the Company’s executive and supervisory management body; 2) approve the Company’s annual reports and balance sheets and distribute profit and loss; 3) enter into employment law and any civil law transactions, including foreign economic transactions; 4) open and close checking and other accounts in banking institutions; 5) make payments and issue monetary funds and their equivalents; 6) act on behalf of the legal entity without a power of attorney; 7) issue powers of attorney to employees and third parties; 8) represent the legal entity before state, judicial and other authorities. 8. For the purposes of performing the above charge, the External Manager shall have the following rights and obligations: 1) to freely receive and have direct access to any information about the Company’s business; 2) to request and obtain the disposal over any accounting books, reports or other documents relating to the company’s business; 3) provide the authorized state authority for state property management with monthly reports on the Company’s operations; 4) to perform in good faith the duties imposed on the External Manager; 5) to act exclusively in the interests of the Company and to avoid conflicts of interest; 6) to effectively manage the assets of the Company, 9. Members (founders), shareholders, managers and employees of the company must provide the External Manager with comprehensive assistance in the performance of his functional duties. 10. The External Manager shall be entitled to remuneration at the Company’s expense. The amount of the remuneration shall be established by the Company’s internal local acts. 11. The external manager must ensure that all outgoing documents of the legal entity (including letters, invoices, contractual and/or financial documents, etc.) contain information that the Company is subject to the external management procedure. 12. The External Manager may be dismissed in the following cases: 1) a final court verdict becomes final in a criminal case concerning the External Manager; 2) the External Manager tenders a request for dismissal; 3) circumstances occur or become known that preclude the External Manager from acting or being appointed; 4) the procedure which the External Manager was appointed to conduct is duly terminated (completed); 5) upon proposal of the authorized state authority for state property management based on the analysis of the Temporary Manager’s activities. 21-11051-lgb Doc 90-5 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 5 Pg 6 of 10 TRANSLATION FROM RUSSIAN 13. The temporary external manager shall be responsible for the proper and/or improper performance of the duties of managing the Company in accordance with the legislation of the Kyrgyz Republic. 14. Upon completion of the external management procedure, the External Manager shall submit a final report on the results of his activities to the Cabinet of Ministers of the Kyrgyz Republic. ______
21-11051-lgb Doc 90-5 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 5 Pg 7 of 10
КАБИНЕТ МИНИСТРОВ КЫРГЫЗСКОЙ РЕСПУБЛИКИ
ПОСТАНОВЛЕНИЕ
от 17 мая 2021 года № 7
Об утверждении Порядка назначения временного внешнего управляющего
В целях реализации статьи 65-1 Закона Кыргызской Республики "Об акционерных обществах", в соответствии со статьями 10 и 17 конституционного Закона Кыргызской Республики "О Правительстве Кыргызской Республики" Кабинет Министров Кыргызской Республики постановляет 1. Утвердить Порядок назначения временного внешнего управляющего согласно приложению. 2. Министерству экономики и финансов Кыргызской Республики принять исчерпывающие меры, вытекающие из настоящего постановления. 3. Настоящее постановление вступает в силу со дня официального опубликования.
Председатель У.Марипов
21-11051-lgb Doc 90-5 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 5 Pg 8 of 10
Приложение
Порядок назначения временного внешнего управляющего
8. Настоящий Порядок определяет процедуру назначения временного внешнего управляющего (далее – внешний управляющий) на период введения временного внешнего управления в акционерных обществах (далее - общество), осуществляющих деятельность в сфере недропользования. 9. Задачей временного внешнего управляющего является обеспечение непрерывной производственной, экономической и иной деятельности юридического лица в условиях непринятия уполномоченным органом общества, необходимых мер для устранения нарушения требований по охране недр, экологической и промышленной безопасности, установленных законодательством Кыргызской Республики, создающего непосредственную угрозу жизни или здоровью людей, работающих или проживающих в зоне влияния работ. 10. Внешний управляющий назначается распоряжением Председателя Кабинета Министров Кыргызской Республики по предложению уполномоченного государственного органа в сфере управления государственным имуществом. 11. Под процедурой временного внешнего управления в обществе понимается регламентируемая настоящим Порядком деятельность внешнего управляющего, специально назначенного для целей, предусмотренных пунктом 2 настоящего Порядка. 12. Внешний управляющий должен соответствовать следующим критериям: 1) для физического лица: - являться гражданином Кыргызской Республики; - иметь высшее образование в области экономической, юридической или технической сферы; - иметь опыт работы на руководящей должности не менее 5 лет; - иметь опыт реализации проектов в сфере недропользования; 2) для юридического лица: - иметь юридическую регистрацию в соответствии с законодательством Кыргызской Республики; - осуществлять деятельность в сфере консультационных и/или консалтинговых услуг; - иметь опыт реализации проектов в сфере недропользования. 13. С момента назначения внешнего управляющего полномочия исполнительного органа общества приостанавливаются на период временного внешнего управления. Временный управляющий наделяется всеми полномочиями исполнительного органа общества,
21-11051-lgb Doc 90-5 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 5 Pg 9 of 10
предусмотренными уставом, законами, иными нормативными правовыми актами Кыргызской Республики в сфере регулирования деятельности акционерных обществ. 14. Внешний управляющий осуществляет текущее руководство и ведет финансово-экономическую деятельность юридического лица, открывает специальный расчетный счет в банковском учреждении, а также имеет право на совершение действий, в том числе, но не ограничиваясь следующим: 1) образование и отзыв исполнительного и контрольного органа управления общества; 2) утверждение годовых отчетов и бухгалтерских балансов общества и распределение его прибылей и убытков; 3) заключение трудовых, любых гражданско-правовых, в том числе внешнеэкономических сделок; 4) открытие и закрытие в банковских учреждениях расчетных и других счетов; 5) проведение платежей и выдача денежных средств и их эквивалентов; 6) осуществление действий от имени юридического лица без доверенности; 7) выдача доверенности работникам и третьим лицам; 8) представление юридического лица в государственных, судебных и иных органах. 8. Для реализации вышеуказанных задач внешний управляющий имеет следующие права и обязанности: 1) беспрепятственно получать любую информацию о деятельности общества и иметь прямой доступ к ним; 2) требовать и получать в свое распоряжение любые бухгалтерские книги, отчетность или другие документы, касающиеся деятельности общества; 3) предоставлять уполномоченному органу в сфере управления государственным имуществом ежемесячно отчет о деятельности общества; 4) добросовестно исполнять возложенные на внешнего управляющего обязанности; 5) действовать исключительно в интересах общества, не допускать конфликта интересов; 6) эффективно распоряжаться активами общества, 9. Участники (учредители), акционеры, руководители, работники общества должны оказывать всестороннее содействие внешнему управляющему в выполнении его функциональных обязанностей. 10. Внешний управляющий имеет право на вознаграждение за счет средств общества. Размер вознаграждения устанавливается внутренними локальными актами общества.
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11. Внешний управляющий обязан следить за тем, чтобы во всех исходящих документах юридического лица (письмах, счетах-фактурах, договорных, финансовых документах и прочие) содержались сведения о том, что в обществе введена процедура внешнего управления. 12. Внешний управляющий может быть освобожден от исполнения своих обязанностей в следующих случаях: 1) вступление в законную силу приговора суда по уголовному делу в отношении внешнего управляющего; 2) подаче внешним управляющим заявления об освобождении его от исполнения обязанностей; 3) выявление или возникновение обстоятельств, препятствующих исполнению обязанностей (назначению) внешнего управляющего; 4) прекращение (завершение) в установленном порядке процедуры, на проведение которой внешний управляющий был назначен; 5) по представлению уполномоченного органа в сфере управления государственным имуществом по результатам анализа деятельности временного управляющего. 13. Временный внешний управляющий несет ответственность за надлежащее и/или ненадлежащее исполнение обязанностей по управлению обществом в соответствии с законодательством Кыргызской Республики. 14. После завершения процедуры внешнего управления внешний управляющий представляет в Кабинет Министров Кыргызской Республики заключительный отчет о результатах своей деятельности. ______
21-11051-lgb Doc 90-6 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 6 Pg 1 of 4
EXHIBIT 6 21-11051-lgb Doc 90-6 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 6 Pg 2 of 4 21-11051-lgb Doc 90-6 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 6 Pg 3 of 4 TRANSLATION FROM RUSSIAN
CABINET OF MINISTERS OF THE KYRGYZ REPUBLIC
ORDER
No 2-r of May 17, 2021
For the purposes of implementing resolution No. 4555-VI of May 17, 2021 of the Jogorku Kenesh of the Kyrgyz Republic “On the Report of the State Commission for Studying the Efficiency of Development of the Kumtor Gold Ore Deposit, for Monitoring the Execution of Jogorku Kenesh Resolution No 2805-V dated February 21, 2013 ‘On the Results of the Work of the State Commission for Verification and Study of Compliance of Kumtor Operating Company CJSC with the standards and requirements on the sustainable use of natural resources, environmental protection, safety of production processes and social protection of the population’ and Resolution No. 465 of the Government of the Kyrgyz Republic of July 3, 2012, formed by Jogorku Kenesh Resolutions Nos 4405-VI and 4422-VI dated February 17, 2021 and February 24, 2021,” in accordance with article 651 Of the Law of the Kyrgyz Republic Joint-Stock Companies as well as Articles 10 and 17 of the Constitutional Law of the Kyrgyz Republic On the Government of the Kyrgyz Republic:
1. Temporary external management is introduced at Kumtor Gold Company Closed Joint-Stock Company. 2. The Ministry of Economy and Finance of the Kyrgyz Republic shall take all the measures arising from this order.
Chairman U.A. Maripov 21-11051-lgb Doc 90-6 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 6 Pg 4 of 4
КАБИНЕТ МИНИСТРОВ КЫРГЫЗСКОЙ РЕСПУБЛИКИ
РАСПОРЯЖЕНИЕ
от 17 мая 2021 года № 2-р
В целях реализации постановления Жогорку Кенеша Кыргызской Республики «Об отчете Государственной комиссии по изучению эффективности разработки золоторудного месторождения «Кумтор», по контролю исполнения постановления Жогорку Кенеша Кыргызской Республики от 21 февраля 2013 года № 2805-V «Об итогах работы Государственной комиссии по проверке и изучению соблюдения ЗАО «Кумтор Оперейтинг Компани» норм и требований по рациональному использованию природных ресурсов, охране окружающей среды, безопасности производственных процессов и социальной защите населения» и постановления Правительства Кыргызской Республики от 3 июля 2012 года № 465, образованной постановлениями Жогорку Кенеша Кыргызской Республики от 17 февраля 2021 года № 4405-VI и от 24 февраля 2021 года № 4422-VI» от 17 мая 2021 года № 4555-VI в соответствии со статьей 651 Закона Кыргызской Республики «Об акционерных обществах», а также статьями 10 и 17 конституционного Закона Кыргызской Республики «О Правительстве Кыргызской Республики»: 1. Ввести в закрытое акционерное общество «Кумтор Голд Компани» временное внешнее управление. 2. Министерству экономики и финансов Кыргызской Республики принять исчерпывающие меры, вытекающие из настоящего распоряжения.
Председатель У.А. Марипов
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EXHIBIT 7 21-11051-lgb Doc 90-7 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 7 Pg 2 of 4 21-11051-lgb Doc 90-7 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 7 Pg 3 of 4 TRANSLATION FROM RUSSIAN
CHAIRMAN OF THE CABINET OF MINISTERS OF THE KYRGYZ REPUBLIC
ORDER
No. 25 dated May 17, 2021
Regarding Tengiz Bolturuk Ayapbergen uulu
Pursuant to Article 651 of the Law of the Kyrgyz Republic “On Joint-Stock Companies” and paragraph 3 of the Procedure for Appointing a Temporary External Manager, approved by Resolution No. 7 of the Cabinet of Ministers of the Kyrgyz Republic dated May 17, 2021, Tengiz Bolturuk Ayapbergen uulu is hereby appointed temporary external manager of Kumtor Gold Company Closed Joint-Stock Company.
Basis: recommendation of the State Property Management Fund of the Ministry of Economy and Finance of the Kyrgyz Republic.
Chairman U.A. Maripov
[seal:] Human Resource Department, Office of the Government of the Kyrgyz Republic
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2021 25 17 2021 25
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, 202 7 l 7 2021 No 7,
Tepara 21-11051-lgb Doc 90-8 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 8 Pg 1 of 22
EXHIBIT 8 21-11051-lgb Doc 90-8 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 8 Pg 2 of 22
In Re: KUMTOR GOLD COMPANY CJSC Main Case No. 21-11051-lgb
June 29, 2021
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2 UNITED STATES BANKRUPTCY COURT
3 SOUTHERN DISTRICT OF NEW YORK
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7 KUMTOR GOLD COMPANY CJSC, Main Case No.
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12 United States Bankruptcy Court
13 One Bowling Green
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22 HON. LISA G. BECKERMAN
23 U.S. BANKRUPTCY JUDGE
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21 eScribers, LLC
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2 A P P E A R A N C E S (All present by video or telephone):
3 SULLIVAN & CROMWELL LLP
4 Proposed Counsel to Debtors
5 125 Broad Street
6 New York, NY 10004
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8 BY: JAMES L. BROMLEY, ESQ.
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11 YOUNG CONWAY STARGATT & TAYLOR, LLP
12 Proposed Co-Counsel and Conflicts Counsel to Debtors
13 Rodney Square
14 1000 North King Street
15 Wilmington, DE 19801
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2 UNITED STATES DEPARTMENT OF JUSTICE
3 Attorneys for United States Trustee
4 U.S. Federal Office Building
5 201 Varick Street, Suite 1006
6 New York, NY 10014
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8 BY: ANDREA B. SCHWARTZ, ESQ.
9 SHARA CORNELL, ESQ.
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12 ARNOLD & PORTER KAYE SCHOLER LLP
13 Attorneys for Government of Kyrgyzstan
14 250 West 55th Street
15 New York, NY 10019
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2 ARNOLD & PORTER KAYE SCHOLER LLP
3 Attorneys for Government of Kyrgyzstan
4 70 West Madison Street
5 Suite 4200
6 Chicago, IL 60602
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1 P R O C E E D I N G S
2 THE COURT: Next case, please. It'll be 21-11051,
3 Kumtor Gold Company CJC (sic). May I have appearances of
4 counsel, please?
5 MR. BROMLEY: Good morning, Your Honor. Jim Bromley
6 of Sullivan & Cromwell, proposed counsel to the debtors.
7 MS. SCHWARTZ: Good morning, Your Honor.
8 MS. MORGAN: Good morning, Your Honor. Go ahead.
9 MS. SCHWARTZ: Good morning, Your Honor. Andrea
10 Schwartz for the United States Trustee. With me is my
11 colleague, Shara Cornell.
12 MS. MORGAN: Good morning, Your Honor. Pleasure to
13 appear before you. Pauline Morgan from Young Conaway Stargatt
14 & Taylor, proposed counsel -- proposed co-counsel and conflicts
15 counsel for the debtors.
16 MR. MINTZ: Good morning, Your Honor. Benjamin Mintz
17 and Seth Kleinman from Arnold & Porter, counsel for the Kyrgyz
18 Republic.
19 THE COURT: Okay. Any further appearances for the
20 record?
21 All right. So today is what we call our required case
22 conference under our Local Rule 1072. Generally, I like the
23 debtors' counsel to give me a little information about what I
24 should be anticipating near term in connection with the case.
25 Some things I'm obviously already aware of. I've reviewed the
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1 docket, and I keep up with it, so I know that there are a
2 number of motions relating to retentions and other matters like
3 that, the applications that will be on before me on second-day
4 hearing that we have scheduled. But I would appreciate an
5 update.
6 So Mr. Bromley, the floor is yours.
7 MR. BROMLEY: Thank you very much, Your Honor. It's a
8 pleasure to be before you again today on this matter. Since we
9 were before you a few weeks ago at the first-day hearing, what
10 we've done is filed a series of motions for hearing on the
11 second day, which is January -- I mean, I'm sorry, July 15th at
12 10 a.m. We also have scheduled a 341 meeting for July 8th.
13 And the U.S. Trustee has informed us that there has
14 been insufficient interest for the formation of a creditors'
15 committee in this case thus far.
16 With respect to the matters that are coming up for
17 July 15th, I would say the most -- in addition to the retention
18 applications, the most substantive matter that we have on is
19 the motion to modify the automatic stay to permit the
20 arbitration to go forward, the arbitration relating to the
21 illegal expropriation of the mine by the Kyrgyz government and
22 its instrumentalities.
23 We described that in some detail at the first-day
24 hearing, Your Honor, and it is our view that that matter should
25 be proceeding apace. And we would hope that the Kyrgyz
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1 Republic and its instrumentalities don't have any objection to
2 that, but we haven't heard anything yet.
3 With respect to other matters, Your Honor, we did
4 describe to you on the first day the issues relating to the
5 interception of a payment of about twenty-nine million dollars
6 by Kyrgyzaltyn that never made it into the New York bank
7 accounts. We are proceeding to issue discovery requests in
8 connection with that.
9 Again, as we described in the first day, Your Honor,
10 the bank accounts relating to gold sales were located -- or are
11 located here in the United States. And since the illegal
12 expropriation events, there have been no deposits made into
13 that account. And the twenty-nine-million-dollar payment that
14 was supposed to have been made in May prior to the
15 expropriation was, as we described, intercepted. And it's not
16 clear where it has gone.
17 Since the filing of the cases, there have not been any
18 substantive conversations with the Kyrgyz Republic or its
19 instrumentalities. We had obviously heard from them on the
20 first day that they had certain concerns about the case and
21 whether or not it should be continuing. There has been no
22 motion made. We are ready, obviously, to respond to anything
23 in the event that the Kyrgyz Republic files anything.
24 I would note, however, Your Honor, that in the time
25 since the filing, there have been communications that have been
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1 coming out of the Kyrgyz Republic, including communications
2 that are attributed to Mr. Mintz, in terms of communications
3 relating to the Chapter 11 proceeding. And we will be looking
4 for copies of all of that information, as well, in the context
5 of that going forward.
6 Right now, we understand -- we have translations of
7 interviews that Mr. Mintz has given with Kyrgyz press
8 reporters. We have copies of letters that have been purported
9 to have been sent on behalf of the debtors that reference
10 advice of counsel, which we could only assume is coming from
11 Arnold & Porter. And in connection with some of those
12 communications, including communications that have been
13 received by the parent, there seems to be a acceptance of, and
14 indeed, an endorsement of the Chapter 11 filing.
15 So in connection with any matters that are going
16 forward, we will obviously be looking at that type of
17 information with respect to any objections that may be lodged
18 by the Kyrgyz Republic. Of course, Your Honor, as you know,
19 the case has been filed for effectively a month now, and we
20 haven't seen anything with respect to any objections.
21 And so with respect to going forward, (indiscernible)
22 exercise here, the debtors are focused entirely on prosecuting
23 the litigation, which is why we filed the motion to permit the
24 arbitration to proceed. And we are focused on conducting
25 discovery to find out exactly what has happened with respect to
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1 the monies that have not been directed to the bank accounts
2 here in the United States. We are considering further
3 discovery requests that will be issued, I think in the next
4 couple of weeks, in connection with further investigations.
5 THE COURT: Okay. So Mr. Bromley, I am guessing that
6 there may be one side, once we hear the motion to lift the
7 stay, if I do lift the stay -- presumably there might be a
8 process with respect to that. But are you also looking at a
9 number of 2004 exams? Because it sounds like that's what you
10 were suggesting to me.
11 MR. BROMLEY: Yes. Yes, Your Honor.
12 THE COURT: Okay.
13 MR. BROMLEY: I'm just giving you the preview. We
14 haven't --
15 THE COURT: No, I appreciate that. I had actually
16 already probably expected to receive the one with respect to
17 the bank account by now even, Mr. Bromley, because I know how
18 you don't like to let grass grow under your feet when you're in
19 charge of a case. So I haven't seen that, but it does not
20 surprise me, based on our conversation in the first day, that
21 those types of things will be coming, because, obviously, there
22 needs to be an investigation relating to funds that the debtor
23 believes should have been paid. All right, well, thank you for
24 that update.
25 I'm guessing Mr. Mintz will want to say something,
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1 perhaps, so I guess I'll ask would anyone else like to be heard
2 with respect to the case conference?
3 MR. MINTZ: Thank you, Your Honor. This is Benjamin
4 Mintz from Arnold & Porter for the Kyrgyz Republic. The only
5 thing I would say is we will be proceeding with -- as I
6 indicated on the first day with a motion to dismiss. And we
7 have been working with our client and pulling together the --
8 kind of all the elements that we want to put before Your Honor.
9 We want to do that in a kind of complete package.
10 And as Your Honor indicated at the first day, you're
11 going to want to see everything that underlies the charter, the
12 Kyrgyz law, all of the issues that are going to be relevant to
13 that question. And we want to do it the right way before Your
14 Honor. We are working hard on that, and I am pushing to get
15 that on file in short order.
16 THE COURT: Okay, understood.
17 MR. BROMLEY: Your Honor, if I may be heard, just one
18 thing on the Kyrgyz law issue. One thing that Mr. Mintz's
19 client has done is made it illegal to provide legal advice on
20 Kyrgyz law to my client. And so I just wanted to give you a
21 head's up that with respect -- any assertions with respect to
22 Kyrgyz law that Mr. Mintz may be putting forth, we are going to
23 be lodging an objection that none of that information should be
24 available because of the law that has made it illegal for us to
25 obtain such legal advice.
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1 And so that is -- I just wanted to give you that
2 head's up. So this is a little bit of a tricky situation.
3 Normally, one would expect expert reports from legal experts,
4 but when they are feeling that they have potential criminal
5 liability in their home jurisdiction, as part of the exercise
6 of the expropriation, the likelihood of there being an
7 available counterpoint to Mr. Mintz's legal arguments is going
8 to be difficult. I just wanted to give you that head's up.
9 THE COURT: I appreciate that, Mr. Bromley.
10 Mr. Mintz, I mean, that doesn't -- sorry to say,
11 doesn't sound like fighting fair here.
12 MR. MINTZ: I can't comment on it, Your Honor. This
13 is the first time I've heard of this, so I'd have to get more
14 information to be able to react.
15 THE COURT: Yeah, I mean, I've never been involved in
16 a dispute where foreign law was the issue where both parties
17 could not have experts testifying to the Court. And so if
18 that's going to be the case, that is going to be a problem
19 here. And people should not be going to jail. I realize I
20 have no control over the Kyrgyz Republic, but lawyers should be
21 able to provide advice to clients. And if the issue's going to
22 be what you have told me it's going to be, that not only the
23 law under the Kyrgyz Republic's laws -- not only did it relate
24 to the assets themselves but also to the underlying
25 documentation and organization of the debtors and the rights to
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1 make decisions under those documents, or to the extent that
2 they've been superseded by actions of the parliament.
3 And so I certainly do think that that would require
4 expert witnesses, so I'm just going to say that to you now. I
5 realize you do not need to comment to me. This is my comments,
6 not yours, but I don't see how that would work here. As I
7 said, I don't -- I have never been involved in any dispute on
8 foreign law where parties were not entitled to have very
9 qualified experts to advise the Court. And I wouldn't expect
10 this to be any different. So I realize --
11 MR. MINTZ: I understand, Your Honor.
12 THE COURT: I realize there are other issues that
13 you've raised with me that have nothing to do, necessarily,
14 with the Kyrgyz law, such as the Foreign Sovereign Immunity
15 (sic) Act and other issues like that, but -- and the Bankruptcy
16 Code, and how it deals with foreign sovereign immunity. But
17 nevertheless, this is obviously going to be a big issue because
18 it's where I was a little skeptical about why the directors
19 don't have any authority anymore in this matter, what we
20 discussed on the first day.
21 So all right. Well, I guess I'll ask if anyone else
22 wants to be heard.
23 Okay. Well, if not, Mr. Bromley and Mr. Mintz and Ms.
24 Schwartz, and I'm guessing Mr. Morgan, as well, and Mr.
25 Kleinman -- I know I will see you again on the 15th when we
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1 have the second-day hearing. And I will look forward to
2 receiving, it sounds like, some papers, possibly, between now
3 and then. And I'm sure we'll have further discussions at that
4 time.
5 Ms. Schwartz, did you want to say something?
6 MS. SCHWARTZ: Yes, thank you. Your Honor. Andrea
7 Schwartz for the United States Trustee. As Your Honor noted,
8 there have been some motions, very typical motions filed, one
9 on monthly compensation, some retentions and so forth. And I
10 just wanted to let the Court know that we intend to have
11 conversations with the proposed professionals and talk with the
12 debtors' counsel about their motions, which is the practice
13 that we undertake in all cases. And we have been since this
14 case was filed. We had a conference yesterday, just to get a
15 status update before today, to be aware of what issues were
16 going to be brought before the Court. And we intend to
17 continue that practice on a go-forward basis, working toward
18 resolution in all ways possible.
19 THE COURT: Thank you, Ms. Schwartz. And it does not
20 surprise me that you've been in conversation with the debtors.
21 Your office is always very good about that.
22 And obviously, Mr. Bromley is a very experienced
23 debtors' counsel who's interacted a lot with your office on
24 numerous cases. So I'm sure you will both keep your lines of
25 communications open. And thank you. That makes the case move
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1 usually smoother, as you know.
2 All right, well thank you all for updating me on the
3 record today for this initial case conference. And as I said,
4 I will see you all again on July 15th at our second-day hearing
5 that's scheduled. And is there anything else that the parties
6 wanted to discuss today before I allow you all to be excused?
7 MR. BROMLEY: Nothing further.
8 THE COURT: Okay.
9 MR. BROMLEY: Thank you, Your Honor.
10 THE COURT: Okay. Well, you all are excused. Thank
11 you for your appearances today. Have a nice day. And I'm
12 going to go ahead and call the next case. Thank you.
13 MS. MORGAN: Thank you, Your Honor.
14 MR. BROMLEY: Thank you, Your Honor.
15 MS. SCHWARTZ: Thank you, Your Honor.
16 THE COURT: Okay.
17 (Whereupon these proceedings were concluded at 10:22 AM)
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2 C E R T I F I C A T I O N
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4 I, Tamara Bentzur, certify that the foregoing transcript is a
5 true and accurate record of the proceedings.
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9 ______
10 Tamara Bentzur (CET-824)
11 AAERT Certified Electronic Transcriber
12
13 eScribers
14 352 Seventh Ave., Suite #604
15 New York, NY 10001
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Attorneys (3) 10:19 10:20;14:20 discovery (3) A 4:3,13;5:3 charter (1) conversations (2) 8:7;9:25;10:3 attributed (1) 11:11 8:18;14:11 discuss (1) able (2) 9:2 Chicago (1) copies (2) 15:6 12:14,21 authority (1) 5:6 9:4,8 discussed (1) acceptance (1) 13:19 CJC (1) CORNELL (2) 13:20 9:13 automatic (1) 6:3 4:9;6:11 discussions (1) account (2) 7:19 clear (1) counsel (9) 14:3 8:13;10:17 available (2) 8:16 6:4,6,14,15,17,23; dismiss (1) accounts (3) 11:24;12:7 client (3) 9:10;14:12,23 11:6 8:7,10;10:1 aware (2) 11:7,19,20 counterpoint (1) dispute (2) Act (1) 6:25;14:15 clients (1) 12:7 12:16;13:7 13:15 12:21 couple (1) docket (1) actions (1) B co-counsel (1) 10:4 7:1 13:2 6:14 course (1) documentation (1) actually (1) bank (4) Code (1) 9:18 12:25 10:15 8:6,10;10:1,17 13:16 COURT (17) documents (1) addition (1) Bankruptcy (1) colleague (1) 6:2,19;10:5,12,15; 13:1 7:17 13:15 6:11 11:16;12:9,15,17; dollars (1) advice (4) based (1) coming (4) 13:9,12;14:10,16,19; 8:5 9:10;11:19,25; 10:20 7:16;9:1,10;10:21 15:8,10,16 done (2) 12:21 basis (1) comment (2) creditors' (1) 7:10;11:19 advise (1) 14:17 12:12;13:5 7:14 13:9 behalf (1) comments (1) criminal (1) E again (4) 9:9 13:5 12:4 7:8;8:9;13:25;15:4 believes (1) committee (1) Cromwell (1) effectively (1) ago (1) 10:23 7:15 6:6 9:19 7:9 BENJAMIN (3) communications (6) elements (1) ahead (2) 4:17;6:16;11:3 8:25;9:1,2,12,12; D 11:8 6:8;15:12 big (1) 14:25 else (3) allow (1) 13:17 Company (1) day (9) 11:1;13:21;15:5 15:6 bit (1) 6:3 7:11;8:4,9,20; endorsement (1) always (1) 12:2 compensation (1) 10:20;11:6,10; 9:14 14:21 both (2) 14:9 13:20;15:11 entirely (1) ANDREA (3) 12:16;14:24 complete (1) deals (1) 9:22 4:8;6:9;14:6 BROMLEY (15) 11:9 13:16 entitled (1) anticipating (1) 6:5,5;7:6,7;10:5, Conaway (1) debtor (1) 13:8 6:24 11,13,17;11:17;12:9; 6:13 10:22 ESQ (4) anymore (1) 13:23;14:22;15:7,9, concerns (1) debtors (6) 4:8,9,17;5:8 13:19 14 8:20 6:6,15;9:9,22; even (1) apace (1) brought (1) concluded (1) 12:25;14:20 10:17 7:25 14:16 15:17 debtors' (3) event (1) appear (1) Building (1) conducting (1) 6:23;14:12,23 8:23 6:13 4:4 9:24 decisions (1) events (1) appearances (3) conference (4) 13:1 8:12 6:3,19;15:11 C 6:22;11:2;14:14; DEPARTMENT (1) exactly (1) applications (2) 15:3 4:2 9:25 7:3,18 call (2) conflicts (1) deposits (1) exams (1) appreciate (3) 6:21;15:12 6:14 8:12 10:9 7:4;10:15;12:9 case (13) connection (5) describe (1) excused (2) arbitration (3) 6:2,21,24;7:15; 6:24;8:8;9:11,15; 8:4 15:6,10 7:20,20;9:24 8:20;9:19;10:19; 10:4 described (3) exercise (2) arguments (1) 11:2;12:18;14:14, considering (1) 7:23;8:9,15 9:22;12:5 12:7 25;15:3,12 10:2 detail (1) expect (2) ARNOLD (5) cases (3) context (1) 7:23 12:3;13:9 4:12;5:2;6:17; 8:17;14:13,24 9:4 different (1) expected (1) 9:11;11:4 certain (1) continue (1) 13:10 10:16 assertions (1) 8:20 14:17 difficult (1) experienced (1) 11:21 certainly (1) continuing (1) 12:8 14:22 assets (1) 13:3 8:21 directed (1) expert (2) 12:24 Chapter (2) control (1) 10:1 12:3;13:4 assume (1) 9:3,14 12:20 directors (1) experts (3) 9:10 charge (1) conversation (2) 13:18 12:3,17;13:9
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expropriation (4) 10:13 information (5) kind (2) 14:25 7:21;8:12,15;12:6 go-forward (1) 6:23;9:4,17;11:23; 11:8,9 matter (4) extent (1) 14:17 12:14 KLEINMAN (3) 7:8,18,24;13:19 13:1 Gold (2) informed (1) 5:8;6:17;13:25 matters (4) 6:3;8:10 7:13 Kumtor (1) 7:2,16;8:3;9:15 F Good (7) initial (1) 6:3 May (6) 6:5,7,8,9,12,16; 15:3 Kyrgyz (16) 6:3;8:14;9:17; fair (1) 14:21 instrumentalities (3) 6:17;7:21,25;8:18, 10:6;11:17,22 12:11 Government (3) 7:22;8:1,19 23;9:1,7,18;11:4,12, mean (3) far (1) 4:13;5:3;7:21 insufficient (1) 18,20,22;12:20,23; 7:11;12:10,15 7:15 grass (1) 7:14 13:14 meeting (1) Federal (1) 10:18 intend (2) Kyrgyzaltyn (1) 7:12 4:4 grow (1) 14:10,16 8:6 might (1) feeling (1) 10:18 interacted (1) Kyrgyzstan (2) 10:7 12:4 guess (2) 14:23 4:13;5:3 million (1) feet (1) 11:1;13:21 intercepted (1) 8:5 10:18 guessing (3) 8:15 L mine (1) few (1) 10:5,25;13:24 interception (1) 7:21 7:9 8:5 law (9) MINTZ (13) fighting (1) H interest (1) 11:12,18,20,22,24; 4:17;6:16,16;9:2, 12:11 7:14 12:16,23;13:8,14 7;10:25;11:3,4,22; file (1) happened (1) interviews (1) laws (1) 12:10,12;13:11,23 11:15 9:25 9:7 12:23 Mintz's (2) filed (5) hard (1) into (2) lawyers (1) 11:18;12:7 7:10;9:19,23;14:8, 11:14 8:6,12 12:20 modify (1) 14 head's (3) investigation (1) legal (4) 7:19 files (1) 11:21;12:2,8 10:22 11:19,25;12:3,7 monies (1) 8:23 hear (1) investigations (1) letters (1) 10:1 filing (3) 10:6 10:4 9:8 month (1) 8:17,25;9:14 heard (6) involved (2) liability (1) 9:19 find (1) 8:2,19;11:1,17; 12:15;13:7 12:5 monthly (1) 9:25 12:13;13:22 issue (4) lift (2) 14:9 first (8) hearing (6) 8:7;11:18;12:16; 10:6,7 more (1) 8:4,9,20;10:20; 7:4,9,10,24;14:1; 13:17 likelihood (1) 12:13 11:6,10;12:13;13:20 15:4 issued (1) 12:6 MORGAN (5) first-day (2) home (1) 10:3 lines (1) 6:8,12,13;13:24; 7:9,23 12:5 issues (5) 14:24 15:13 floor (1) Honor (26) 8:4;11:12;13:12, litigation (1) morning (6) 7:6 6:5,7,8,9,12,16; 15;14:15 9:23 6:5,7,8,9,12,16 focused (2) 7:7,24;8:3,9,24;9:18; issue's (1) little (3) most (2) 9:22,24 10:11;11:3,8,10,14, 12:21 6:23;12:2;13:18 7:17,18 foreign (4) 17;12:12;13:11; LLP (2) motion (5) 12:16;13:8,14,16 14:6,7;15:9,13,14,15 J 4:12;5:2 7:19;8:22;9:23; formation (1) hope (1) Local (1) 10:6;11:6 7:14 7:25 jail (1) 6:22 motions (5) forth (2) 12:19 located (2) 7:2,10;14:8,8,12 11:22;14:9 I January (1) 8:10,11 move (1) forward (5) 7:11 lodged (1) 14:25 7:20;9:5,16,21; IL (1) Jim (1) 9:17 much (1) 14:1 5:6 6:5 lodging (1) 7:7 funds (1) illegal (4) July (4) 11:23 10:22 7:21;8:11;11:19, 7:11,12,17;15:4 look (1) N further (5) 24 jurisdiction (1) 14:1 6:19;10:2,4;14:3; Immunity (2) 12:5 looking (3) near (1) 15:7 13:14,16 JUSTICE (1) 9:3,16;10:8 6:24 including (2) 4:2 lot (1) necessarily (1) G 9:1,12 14:23 13:13 indeed (1) K need (1) Generally (1) 9:14 M 13:5 6:22 indicated (2) KAYE (2) needs (1) given (1) 11:6,10 4:12;5:2 Madison (1) 10:22 9:7 indiscernible (1) keep (2) 5:4 nevertheless (1) giving (1) 9:21 7:1;14:24 makes (1) 13:17
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EXHIBIT 9 21-11051-lgb Doc 90-9 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 9 Pg 2 of 12
SULLIVAN & CROMWELL LLP 125 Pi31f<>«4 TELEPHONE: 1·212·558·4000 FACSIMILE: 1· 212·558·3588 WWW SULLCROM.COM JVew o/twi, JVew o/twi tOOOll-211.93
LOS ANGELES • PALO ALTO • WASHINGTON. 0 C
ORUSS£LS • F AANt BEUING • HONG KONC • TOKYO MELBOURNE • SYDNEY May 14, 2021 By Hand and Courier Government of the Kyrgyz Republic Dom Pravitel'stva Bishkek 720003 Kyrgyz Republic Attn: His Excellency Prime Minister Mr. U. Maripov Re: Notice of Arbitration Dear Sir: We write on behalf of Centerra Gold Inc., Kumtor Gold Company CJSC and Kumtor Operating Company (collectively, the "Companies"), to provide you, as representative of the Government of the Kyrgyz Republic (the "Government"), with this Notice of Arbitration against the Kyrgyz Republic, pursuant to Clause 9.6 of the Strategic Agreement on Environmental Protection and Investment Promotion, dated September 11 , 2017 (the "SA"), Article 11.3 of the Restated Investment Agreement, dated June 6, 2009 (the "RIA"), and Article 3 of the UNCITRAL Arbitration Rules. The Government, through itself and its instrumentalities, have breached and/or have threatened to breach the SA and RIA as described herein, and the Companies hereby demand that this dispute be resolved by arbitration. 1 A. The Parties Claimants: Centerra Gold Inc. ("Centerra") is a company organized under the laws of Canada, with its corporate headquarters in Toronto, Canada. Centerra is a leading gold and copper producer. Kumtor Gold Company CJSC ("KGC") and Kumtor Operating Company ("KOC") are each companies organized under the laws of The Companies reserve their right to amend this Notice to include any and all non-injunctive relief claims under the RIA related to their Notice · 21 , 2021 , should such claims not be resolved within the 45-day p Iif1d«,fet-~tt~ft9fu•cwuwn negotiation" set forth in Article 11.2 of the RIA. The Notice of isP.ute \Ue'ilefl:i~d by ·1 22 2021 d b . A '126 2021 A11.NaRac,paaaa n pu R.u11a han d On Apn , an YCOUTJer On pTl , , Kwp rwmloi P./i:6/.u lrnpHIJI • "7t oij It!! ...... /:!./...... Z .. 7 6. Tllpi;l' \lf 6. 11a{1..·~ti • .1.npu:10:.i...... n. :.'.: ...... :• .... f?...£.... 20/...&.r. 21-11051-lgb Doc 90-9 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 9 Pg 3 of 12 Mr. U. Maripov -2- the Kyrgyz Republic, and are wholly owned subsidiaries of Centerra. KGC and KOC operate an open-pit gold mine in the Issyk-Kul Region of the Kyrgyz Republic called the Kumtor Mine. Centerra's address is 1 University Avenue, Suite 1500, Toronto, Ontario, MSJ 2Pl, Canada; and KGC's and KOC's address is 24 lbraimov Street, Bishkek, Kyrgyz Republic 720031. All correspondence in this arbitration shall be sent to Claimants' counsel at the following address: Sullivan & Cromwell LLP 125 Broad Street New York, New York I 0004 U.S.A. Attn: Joseph E. Neuhaus ([email protected]) and Andrew J. Finn ([email protected]) Respondent: The Government of the Kyrgyz Republic entered into a series of concession and related agreements with the Companies beginning in 1993, including but not limited to the RIA and SA. The Government is currently led by the Prime Minister, Ulukbek Maripov, and the President, Sadyr Japarov. Through the Open Joint Stock Company Kyrgyzaltyn, the Government also is Centerra's largest shareholder. Under Section 15.4 of the RIA, all notices to the Government are to be directed to the following address: Government of the Kyrgyz Republic Dom Pravitel'stva Bishkek 720003 Kyrgyz Republic Attention: The Prime Minister B. The Arbitration Agreements The Government and the Companies entered into the RIA on June 6, 2009. The parties agreed that "disputes arising out of this Agreement or the Restated Concession Agreement shall be resolved under, and this Agreement and the Restated Concession Agreement shall be construed in accordance with, the laws of the State of New York, United States of America." Section 11.2 of the RIA requires the parties to "use their best efforts to resolve a Dispute and" a party seeking to resolve a Dispute "shall give at least 45 days 21-11051-lgb Doc 90-9 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 9 Pg 4 of 12 Mr. U. Maripov -3- notice of any Dispute prior to commencing any arbitration (without prejudice to each party's rights to seek injunctive relief or its equivalent in arbitration)." On April 22, 2021 and April 26, 2021, the Companies delivered a Notice of Dispute to the Government. In particular, Section 11.3 states in relevant part: Any party can initiate arbitration by notice of intention to arbitrate to the other party or parties stating the Dispute (as defined in Section 11.1) to be arbitrated. Upon the giving of such notice, the Dispute shall be detennined by the arbitration award of an Arbitrator who is agreed upon in writing by the parties. Failing such agreement within four weeks after notice by either party, the Arbitrator shall be appointed upon the application of any party by the United Nations Commission of International Trade Law ('UNCITRAL') acting under its rules for conciliation and arbitration (the 'Arbitration Rules'). The Arbitrator shall be a person whose profession and experience make him or her qualified to consider the Dispute. The RIA further provides that "[a]ny arbitration shall be held at Stockholm, Sweden, or at such other place as may be agreed upon by those involved in the arbitration," and "arbitration proceedings shall be conducted in the English language." Section 9.6 of the SA incorporates Section 11.3 of the RIA, but does not require a pre-arbitration dispute notice or negotiation period: The Parties agree that any disputes or claims arising out of or relating to this Agreement shall be subject to the dispute resolution provisions in Section 11.3 of the RIA save that, if the Parties fail to agree to an Arbitrator, the PCA shall act as the Appointing Authority pursuant to the UNCITRAL Arbitration Rules. An arbitral tribunal constituted under this Agreement may, at the request of a party to the arbitration proceedings, consolidate the arbitration proceeding with any other arbitration arising under this Agreement, the Amended and Restated Reclamation Trust Deed or the Existing Project Agreements, if the arbitration proceedings raise common questions of law or fact, and consolidation would not prejudice the rights of any party. If two or more arbitral tribunals under this Agreement, the Amended and Restated 21-11051-lgb Doc 90-9 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 9 Pg 5 of 12 Mr. U. Maripov -4- Reclamation Trust Deed or the Existing Project Agreements issue consolidation orders, the order issued by the arbitral tribunal first constituted shall prevail. C. The Arbitrator Section 11.3(a) of the RIA calls for the parties to agree on a sole arbitrator to resolve their Disputes. While the Claimants are willing to engage in constructive dialogue with the Government, if the parties fail to agree to appoint a sole arbitrator within 28 days of the date of this Notice, Claimants will request that the Permanent Court of Arbitration appoint an arbitrator, as provided under Clause 9.6 of the SA and Article 6 of the 2013 UNCITRAL Arbitration Rules (the "UNCITRAL Rules"), which govern this arbitration. D. The Dispute 1. The Illegitimate Glacier Lawsuit: As part of the SA, signed as of September 11, 2017 and fully effective as of August 26, 2019, the Companies agreed to make payments and concessions to the Government of at least $60 million USO and to make annual payments of at least $3.7 million USO to the Government for the life of the Kumtor Mine. In exchange, among other things the Government agreed "on behalf of itself and on behalf of each Government Entity, and ... any other person or entity who is entitled to make a Claim in the name of the KR Government" "never to bring any action, directly or indirectly ... on the subject matter of' several cases against the Companies that had been filed in Kyrgyz courts. One of those cases was brought by the Kyrgyz Republic State Inspectorate Office for Environmental and Technical Safety ("SIETS") and sought "damages for harm allegedly caused to the environment by KOC storing productio.n tails on glaciers." In addition to agreeing not to bring claims itself, the Government agreed, in Clause 2.2 of SA, "to support" the Companies and "to uphold the terms" of the SA "in any action brought by any Government Entity or third party acting or purporting to act on behalf of' the Government. The Government further represented that, as of August 26, 2019, it did not have any "actual, pending or threatened Claims or, to [its] Knowledge, any cause of action ... relating to or in connection with Centerra, KGC, [or] KOC .. . that arose on or after 24 April 2009 and before" August 26, 2019 except claims "in connection with Unknown Environmental Damage." In March 2021, four KR citizens acting for and in concert with the Government, including the son of the director of the Government' s State Agency for Environment Protection and Forestry ("SAEPF"), filed a lawsuit against KGC in the Oktyabrsky District Court of Bishkek seeking a declaration that "KGC actions related to waste dumping on the Davydov and Lyisi glaciers," which occurred prior to 2019 and were known to and approved by the Government at that time, were in fact illegal (the 21-11051-lgb Doc 90-9 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 9 Pg 6 of 12 Mr. U. Maripov -5- "Glacier Lawsuit"). Claimants also sought unspecified "financial sanctions" that would be payable to, and thus sought on behalf of, the Government. Because the claims in Glacier Lawsuit were brought by third parties purporting to act on the Government's behalf and were related to the subject matter of a claim released pursuant to the SA, the Government was required to support KGC in the Glacier Lawsuit. Contrary to its contractual obligations under the SA, the Government actively supported claimants' action. SIETS began appearing at hearings as an interested party on April 29, 2021 and subsequently urged the court to rule in favor of the claimants on multiple occasions. Then, on May 3, 2021 , without any advance notice to KGC, the claimants amended their complaint to add a claim for KGS 261,719,674,080 (approximately $3,087,000,000 USO) payable to the Government. The Government facilitated claimants' amended demand by, among other things, reducing significantly a filing fee claimants otherwise would have had to pay to make such a demand. With the Government's full support and without providing KGC any reasonable time to prepare a defense and after dismissing all of KGC's objections out of hand at hearings on May 4 and May 6, the court hastily rendered judgment in claimants' favor on May 7, purporting to award the Government KGS 261,719,674,080 and even went so far as to award the claimants a filing fee they never paid. The Government's actions, including the judgment procured in the Glacier Lawsuit, violate the release and the Government's support obligations in the SA. Claimants seek a preliminary and final injunction barring enforcement of the Glacier Lawsuit judgment and damages resulting from the Government's breach of its obligations. 2. Temporary Management Law: The Kyrgyz Republic Parliament, the Jogorku Kenesh, has also taken and continues to take precipitous action targeting the Companies in violation of the RIA. Specifically, legislation was secretly introduced on April 30, 2021 and passed after three readings in a single day on May 6, 2021 that would allow the Government to illegally appropriate management authority over KGC (the "Temporary Management Law"). The Temporary Management Law was initiated by Mr. Akylbek Japarov, who heads a state commission established by the Jogorku Kenesh pursuant to resolutions dated February 17, 2021 and February 24, 2021 purportedly tasked with ''verifying the work of the Kumtor gold mining company," (the "State Commission"). 2 2 See, e.g., https://24.kg/vlast/183745 _ vsostav_deputatskoy _komissii_poproverke _ rabotyi _ kumtora_ voshli_ l 2deputatov/ [https://perma.cc /9SZ5-8A5 D] 21-11051-lgb Doc 90-9 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 9 Pg 7 of 12 Mr. U. Maripov -6- While written in general terms, it was recognized during the short parliamentary debates on the Temporary Management Law that the only entity to which it applied was the Kumtor mine. This legislation gives the Government the ability to suspend "the powers of [KGC]'s management bodies" and introduce "temporary external management" if KGC's "right to use subsoil resources" is suspended "on the grounds of violation by [KGC] of the requirements for the protection of subsoil resources, environmental and industrial safety established by the legislation of the Kyrgyz Republic, creating an immediate threat to the life or health of people working or living in the zone of operations influence." The Temporary Management Law also permits the Government to take control of the assets of KGC through appointment of"temporary external manager[s]" who would be "vested with all the powers of the company's executive body" including power over "[a]ll bank accounts for the company." Further, the Law declares that, after the appointment of a temporary manager, the corporate powers of KGC's shareholders and board of directors shall be suspended and both the shareholders and the board of directors will "have no right to interfere in the current management of the company by giving direct instructions, orders or any other instructions in the form of a request or recommendation to the temporary external manager." Individuals who violate the legislation face criminal punishment. Based on media reports, the Temporary Management Law was signed into law by the President of the Kyrgyz Republic on May 14, 2021. 3 On information and belief, the Government intends imminently to implement the Temporary Management Law on a spurious claim that the operation of the mine creates "an immediate threat to the life or health of people working or living in the zone of operations influence." Such a conclusion would be wholly false and without foundation. The Kumtor Mine's environmental performance adheres to international standards and has been audited multiple times by, among others, the Kyrgyz Government's own environmental consultant, AMEC Foster Wheeler. AMEC's reports have confirmed that the Kumtor Mine is operated in accordance with international best practice and its recommendations for improvements have been implemented by the Company. Implementation of the Temporary Management Law would violate numerous provisions of the RIA, including but not limited to: (i) Article 6.1 's prohibition on Expropriatory Action, which includes "any action . .. that is confiscatory in effect or that otherwise deprives the direct or indirect owner of the asset ... subject to such action of the effective control thereof'; (ii) Article 2.2's guarantee that the "Project Companies," 3 https://24.kg/english/193950 _ Sadyr_Japarov _ approves_imposition_ of _external_management_on_companies/ [https://perma.cc/27KC-3WKT] 21-11051-lgb Doc 90-9 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 9 Pg 8 of 12 Mr. U. Maripov -7- including KGC, "shall be governed as provided in their respective charters" and "[o ]nly shareholders of the relevant Project Company shall be entitled to any voting or other rights in respect of that Project Company's corporate matters"; and (iii) Article 6.3 's prohibition on subjecting the Companies to "Legislation that is, either by its terms or in its effect, discriminatory." Claimants seek a preliminary and final injunction barring implementation of the Temporary Management Law with respect to Kumtor. 3. State Tax Service Pursuit ofResolved or Precluded Claims: Article V of the RIA sets forth the tax and related payments regime for the life of the Kumtor Mine. In December 2020, the Kyrgyz Republic State Tax Service (the "STS") began what appears to be a coordinated effort to pursue historical claims against KGC that are precluded by Article V of the RIA and were in any event resolved years ago. According to one Kyrgyz official, these claims combined with the judgment in the Glacier Lawsuit total over $4.2 billion USO. In particular, the STS is attempting to re-audit KGC's social insurance payments for 2011 through 2017 even though those payments were previously audited in 2018, has filed a lawsuit seeking to collect additional payments for that period, and is attempting to audit payments for 2018 through 2020. In addition, the STS attempted to revive baseless claims against KGC that (a) alleged taxes are owed on certain dividend payments made to Centerra in 2016 and 2017; (b) alleged additional payroll deductions are owed for national employee compensation from the years 2016 and 2017 based on high-altitude premium and shift premium compensation; and (c) alleged additional payments are owed to the Kyrgyz Republic Social Fund (the "Social Fund") from the years 2011 through 2017 based on the shift premiums and on compensation paid to KGC employees who are not Kyrgyz citizens. On May 14, 2021 , the Bishkek Inter-District court rendered a KGS 2, I 05,631 ,566 (approximately $24 million USO) judgment against KGC for additional Social Fund payments. Each of these claims was previously raised in 2017 or 2018 and abandoned by the Government or dismissed by the Kyrgyz courts, because they are not legitimate claims under the RIA and Kyrgyz law. First, the RIA expressly precludes the Government from taxing dividends paid among the Companies. Article 5.4(b) of the RIA states unequivocally that the Companies "shall be exempt from paying Taxes with respect to intra-group transactions between them, including for services, dividends, interest, repayment of principal or other distributions or other transactions involving" the Companies. The Government's attempts to assess taxes on fully authorized dividend payments made by KGC to Centerra is a clear breach of this provision. Indeed, the State Tax Service conceded as much in 2018 when it accepted KGC' s previous challenge to this claim. 21-11051-lgb Doc 90-9 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 9 Pg 9 of 12 Mr. U. Maripov -8- Second, the STS's payroll deduction claims were considered and rejected by Kyrgyz courts because they are contrary to Kyrgyz law. Article 5.3(i) of the RIA requires the Companies to make payroll deductions only as "required by the prevailing Legislation," and it is well-settled under Kyrgyz law that high-altitude pay is not considered taxable income subject to payroll deductions. For this reason, the Bishkek Inter-District Court on December 6, 2018 granted KGC's previous challenge to the Government's attempt to improperly require such deductions. The Government did not timely appeal that decision, and the dismissal of that case was a fundamental basis for the substantial payments to the Government provided for in the SA and subsequent Deed Poll, dated August 7, 2019. Moreover, the fact that the high-altitude pay is not subject to personal income tax was also confirmed by decisions of the Kyrgyz courts in similar cases. (See Court Ruling of the KR Supreme Court, Case No. AD-06/ l 9mbs4 (No. AB- 06-5 I 2/19AD, K\N No. 6-157/20AD) dated June 15, 2020.) Nevertheless, the Government has orchestrated an illegitimate appeal of the Inter-District Court's December 2018 decision more than two years after the fact, including by procuring both a baseless ruling from the Bishkek City Court reopening the appeal period. Third, the STS's attempt to require a contribution to the Social Fund or payroll deductions for shift premiums violates the RIA. Under KGC's long-term agreements with its employees, KGC has never paid shift premiums and instead provides free meal services to its employees. The Government has been well-aware of those labor agreements. Article 5.4(d) of the RIA expressly states that "provision of food at the Kumtor Mine by the Project Companies, free of charge to employees of the Project Companies, shall be exempt from Taxes." The term "Taxes" is defined to include "taxes, duties, rates, royalties, withholding obligations, deductions or other governmental charges whatsoever, however characterized." Fourth, KGC does not owe Social Fund payments for non-Kyrgyz citizens who work at the Kumtor Mine. Article 5.3(i) of the RIA requires the Companies to make Social Fund payments only "in respect of such Project Company employees who are Kyrgyz citizens." This is consistent with Article 17 of the Republic's Law on Investments, dated March 27, 2003, which grants the Companies "the right to transfer payment on social insurance and provision for foreign employee[s] to the respective funds of the foreign state[s] unless otherwise provided by the international agreements." This means that KGC may fulfill any Social Fund commitments for non-Kyrgyz citizen employees by paying applicable social tax in those employees' home countries, and there are decisions from Kyrgyz courts to this effect. (See Decision of the Bishkek Inter- District Court dated January 8, 2019 and KR Supreme Court Ruling dated May 19, 2009.) Accordingly, the Government's attempt to require KGC to pay additional amounts to the Social Fund is contrary to both the RIA and Kyrgyz law. 21-11051-lgb Doc 90-9 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 9 Pg 10 of 12 Mr. U. Maripov -9- Further, as noted above, the parties entered into a series of agreements from 2017 to 2019 to resolve numerous claims asserted by the Government. In the SA, the Govenunent represented to the Companies that as of August 2019 the Government had "no actual, pending or threatened Claims or, to their Knowledge, any cause of action, in each case, relating to or in connection with" the Companies "that arose on or after 24 April 2009 and before" August 26, 2019 "other than any Claims ... arising out of, or in connection with Unknown Environmental Damage." The STS was of course aware of all of the claims they are attempting to re-assert now because they had attempted to assert them before 2019. Claimants seek a preliminary and final injunction barring the Government from pursuing these spurious claims and damages for breach of the Government's representations in the SA. 4. Proposed Amendme11ts to tl,e New Kumtor Law and Tax Code: In April, 2021, one or more members of the Jogorku Kenesh proposed additional legislation that if adopted could fundamentally alter the legal foundation of the Kumtor Project4 and the parties' agreements by amending the New Kumtor Law that was adopted to specifically ratify the RIA. See On Ratification of the Agreement on New Terms for the Kumtor Project, dated April 24, 2009 (the "New Kumtor Law"). The new legislation, if adopted, would specifically amend the New Kum tor Law by deleting sections of that law that recognized the primacy of the RIA over other Kyrgyz legislation and subjecting the Kumtor mine to certain general legislation, including the Kyrgyz tax Jaws. Pursuant to the RIA, the parties agreed that the "New Kumtor Law and the other Legislation as modified by the New Kumtor Law shall be stabilized as of June 2, 2009." In addition, the RIA states that "the rates, amounts and other terms of any Taxes or other payments payable ... shall not be subject to any future change in Legislation or treaty provisions, which would be more burdensome to the" Companies. As recently as August 2019, pursuant to the terms of the SA, the Government re-confirmed the validity of the New Kumtor Law and the RIA and all provisions thereof. Claimants seek a preliminary and final injunction barring implementation of the new legislation. • • • All of these actions and threatened actions present an immediate threat of irreparable harm to Claimants. Indeed, based on media reports, the Government and its 4 Unless otherwise defined, capitalized terms have the meanings set forth in the RIA or SA. 21-11051-lgb Doc 90-9 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 9 Pg 11 of 12 Mr. U. Maripov -I 0- agents appear to be threatening to use the illegitimate judgment procured in the Glacier Lawsuit, together with the STS's spurious tax claims and the "Temporary" Management Law, as a pretext to expropriate the Project Companies and Centerra's investments protected under the RIA and related agreements. For example, according to media reports Mr. A. Japarov, the head of the State Commission, stated at a meeting of the Commission on May 12, 2021 that: (i) the Govemment would seize the Kumtor Mine if the judgment rendered in the Glacier Lawsuit and pending tax claims described above are not paid;5 (ii) gold produced at the Kumtor Mine "will remain in Kyrgystan from May" if temporary external management is imposed on KGC;6 and (iii) "we ourselves"- apparently referring to Government officials or instrumentalities-"will be able to continue production" at the Kumtor Mine. 7 Claimants understand based on media reports that an extraordinary session of the Jogorku Kenesh has been scheduled for May 17, 2021 to "discuss probable nationalization of the Kumtor company."8 E. Relief Sought Pursuant to Article 3 of the UNCITRAL Rules, Claimants seek in this arbitration: (i) declaratory relief; (ii) injunctive relief or the equivalent; (iii) an award of the costs of the arbitration, including costs for legal representation; and (iv) any other relief that the arbitrator may deem just and proper. If the parties are unable to resolve their dispute under the RIA in good faith negotiations as contemplated by Article 11.2 of the RIA as set forth in the Notice of Dispute, Claimants anticipate amending this Notice to seek damages that may result from any breach of the RIA and related agreements. As indicated above, based on the Government's aggressive actions that appear to be aimed at interfering with and potentially expropriating Centerra' s investment in clear violation of the RIA and SA, immediate interim measures are needed to enjoin the Government, including its instrumentalities and any person or entity acting in concert with it, from (i) attempting to enforce the judgment in the Glacier Lawsuit; (ii) imposing "temporary external management" on KOC under the Temporary Management Law; (iii) expropriating the Kumtor Mine; (iv) pursuing historical tax claims (including social s https://24.kg/english/193874_Centerra_Gold_gives_government_of_Kyrgyzstan _ 45_days _ for_negotiations/ [https://perma.cc/8B W8-BJAN] 6 Id 7 https://24.kg/vlast/193834/ [https://perma.cc/A4AD-2HG] 8 https://24.kg/english/193796_Nationalization_of_Kumtor_Parliament_to _hold_ extraordinary_session/ [https://perrna.cc/EDJ2-CP9Z] 21-11051-lgb Doc 90-9 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 9 Pg 12 of 12 Mr. U. Maripov -1 1- insurance payments) that have been previously resolved or dismissed; (v) implementing any proposed changes to the ANT or Tax Code that would undermine the stabilization clause or any other rights. the Companies have under the RIA or related agreements; or (vi) otherwise aggravating the dispute. The Companies reserve their right to amend this Notice to include additional claims and parties. Sincerely yours, ..Sv//,1,,;,._ ef c ,.'?-7 ..,.,,// LL/4 Sullivan & Cromwell LLP 21-11051-lgb Doc 90-10 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 10 Pg 1 of 20 EXHIBIT 10 21-11051-lgb Doc 90-10 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 10 Pg 2 of 20 Sulliv an & Cromwell llp 425 Jfaeet TELEPHONE: 1-212-558-4000 FACSIMILE: 1-21 2-558-3588 WWW.SULLCROM.COM ^d/ew- (^ LOS ANGELES • PALO ALTO • WASHINGTON, D.C. BRUSSELS • FRANKFURT • LONDON • PARIS BEIJING • HONG KONG • TOKYO MELBOURNE • SYDNEY June 16, 2021 By Courier and E-Mail Government of the Kyrgyz Republic Dom Pravitel’stva Bishkek 720003 Kyrgyz Republic Attn: His Excellency President Mr. S. Japarov Attn: His Excellency Chairman of the Council of Ministers Mr. U. Maripov Kyrgyzaltyn OJSC Ulitsa Abdumomunova, dom 195 Bishkek 720040 Kyrgyz Republic Attn: Chairman of the Board of Directors Arnold & Porter Kaye Scholer Tower 42, Old Broad Street London, United Kingdom Attn: Dmitri Evseev (by email) Re: First Amended Notice of Arbitration Dear Sirs: We write on behalf of Claimants Centerra Gold Inc., Kumtor Gold Company CJSC and Kumtor Operating Company CJSC (collectively, the “Claimants”), to provide this First Amended Notice of Arbitration against the Government of the Kyrgyz Republic (the “Government”) and Kyrgyzaltyn OJSC (“Kyrgyzaltyn” and together with the Government, “Respondents”), which is made pursuant to Clause 9.6 of the Strategic Agreement on Environmental Protection and Investment Promotion, dated September 11, 2017 (CXOl) (the “SA”) as well as certain related agreements, all of which incorporate an arbitration clause in a single agreement, Article 11.3 of the Restated Investment Agreement, dated June 6, 2009 (CX02) (the “RIA” and, collectively, the “Investment Agreements”). The Investment Agreements provide for arbitration under the UNCITRAL Arbitration Rules (the “UNCITRAL Rules”). Respondents have violated 21-11051-lgb Doc 90-10 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 10 Pg 3 of 20 Government of the Kyrgyz Republic -2- Kyrgyzaltyn OJSC the fundamental provisions of the Investment Agreements, as described herein, and the Claimants hereby demand that this dispute be resolved by arbitration.1 A. The Parties Claimants: Centerra Gold Inc. (“Centerra”) is a company organized under the Canada Business Corporations Act, with its corporate headquarters in Toronto, Canada. Centerra is a leading gold and copper producer. Kumtor Gold Company CISC (“KGC”) and Kumtor Operating Company CISC (“КОС”) are each companies organized under the laws of the Krygyz Republic, and are wholly owned subsidiaries of Centerra. Until on or about May 15, 2021, KGC and КОС operated an open-pit gold mine in the Issyk-Kul Region of the Krygyz Republic called the Kumtor Mine. As a result of Respondents’ violations of the Investment Agreements and other ongoing actions, on May 31, 2021, KGC and КОС commenced solvent restructuring proceedings under Chapter 11 of the United States Bankruptcy Code in the United States Bankruptcy Court for the Southern District of New York.2 Centerra’s address is 1 University Avenue, Suite 1500, Toronto, Ontario, M5J 2P1, Canada; and KGC’s and KOC’s address is 24 Ibraimov Street, Bishkek, Kyrgyz Republic 720031. All correspondence in this arbitration shall be sent to Claimants’ counsel at the following address: Sullivan & Cromwell LLP 125 Broad Street New York, New York 10004 U.S.A. Attn: Joseph E. Neuhaus (neuhausi @ sullcrom.com) and Andrew J. Finn ([email protected]) 1 The Claimants reserve their right to further amend this Notice to include additional claims. 2 Pursuant to Section 362 of the United States Bankruptcy Code, certain proceedings against KGC and КОС are subject to an automatic worldwide stay. On June 8, 2021, the Bankruptcy Court entered an order, among other things, setting forth the terms of the automatic stay. The automatic stay applies only to actions against KGC or КОС and does not prevent the Claimants from pursuing any claims set out in this Notice. 21-11051-lgb Doc 90-10 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 10 Pg 4 of 20 Government of the Kyrgyz Republic -3- Kyrgyzaltyn OJSC Respondents: The Government of the Kyrgyz Republic, on behalf of the Kyrgyz Republic, and its instrumentalities, entered into a series of concession and related agreements with the Claimants beginning in 1993, including but not limited to the Investment Agreements. The Government is currently led by the President, Sadyr Japarov, and the Chairman of the Council of Ministers, Ulukbek Maripov. Kyrgyzaltyn is a state-owned entity incorporated under the laws of the Kyrgyz Republic and controlled by the Government. Kyrgyzaltyn operates a gold- refining monopoly in the Kyrgyz Republic. Under the Restated Gold and Silver Sale Agreement, dated June 6, 2009 (CX03) (the “GSSA”), Kyrgyzaltyn receives all of the dore3 produced at the Kumtor Mine, refines the dore at its own facility, sells the refined gold and silver to a buyer, and instructs the buyer through irrevocable instructions to transfer the gold’s purchase price—less certain amounts payable to Kyrgyzaltyn— directly to KGC’s bank account in New York. Through Kyrgyzaltyn, the Kyrgyz Republic is Centerra’s largest shareholder, owning 77,401,766 shares of Centerra’s common stock (or approximately 26.2% of the issued and outstanding shares). According to the Agreement on New Terms for the Kumtor Project, dated April 24, 2009 (CX04) (the “ANT”), a framework agreement for the other Investment Agreements, Kyrgyzaltyn “holds shares in Centerra on behalf of the Government.” Pursuant to a Shareholders Agreement dated June 6, 2009 (CX05), Kyrgyzaltyn had the right to appoint two representatives to Centerra’s Board of Directors. Under the Second Amended and Restated Agreement on Payment of a Commission to Kyrgyzaltyn for its Participation in the Operation of the Kumtor Gold Project, dated June 6, 2009 (CX06) (the “Management Agreement”), Kyrgyzaltyn agreed to “assist[] with the resolution of issues that are subject to the jurisdiction of the Kyrgyz governmental bodies, including with respect to tax, financial, economic and legal matters that may arise in the course of the Kumtor Project operations.” Kyrgyzaltyn is the alter ego of the Government, has actively participated and conspired with the Government in the wrongful acts set forth herein, and, on information and belief, has acted at all relevant times and for all relevant purposes, and continues to act, at the behest and instruction of the Government, including with respect to Kyrgyzaltyn’s shareholding in Centerra. 3 Dore is a semi-pure alloy of gold and silver. As is typical in the mining industry, the Kumtor Project produces dore bars onsite instead of transporting unprocessed ore. 21-11051-lgb Doc 90-10 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 10 Pg 5 of 20 Government of the Kyrgyz Republic -4- Kyrgyzaltyn OJSC Under Section 15.4 of the RIA, Section 6.9 of the ANT, and Clause 17 of the GSSA, which provide the relevant notice provisions, all notices to the Government and Kyrgyzaltyn are to be respectively directed to the following addresses: Government of the Kyrgyz Republic Dom Pravitel’stva Bishkek 720003 Kyrgyz Republic Attention: The Prime Minister Kyrgyzaltyn OJSC Ulitsa Abdumomunova, dom 195 Bishkek 720040 Kyrgyz Republic Attention: Chairman of the Board of Directors The Kyrgyz Republic has retained counsel to represent it in this matter, who have requested that all future communications in this matter be directed to the following addresses: Arnold & Porter Kaye Scholer LLP Tower 42, 25 Old Broad Street London, United Kingdom Attn: Dmitri Evseev Tim Smyth Alice Osman Email: [email protected]; [email protected]; Alice. Osman @ arnoldporter.com; xCenterraKyrgyzstan @ arnoldporter.com Joel I. Greenberg Alexander Shaknes Arnold & Porter 250 West 55th Street New York, NY 10019-9710 Email: [email protected] Alex.Shaknes @ arnoldporter.com 21-11051-lgb Doc 90-10 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 10 Pg 6 of 20 Government of the Kyrgyz Republic -5- Kyrgyzaltyn О JSC The same counsel represent Respondent Kyrgyzaltyn. B. The Arbitration Agreements On June 6, 2009, the parties agreed to a single arbitration agreement to resolve their disputes related to the Kumtor Mine. The agreement is set forth in Section 11 of the RIA and is incorporated by reference in the GSSA and the Management Agreements, among others. Section 11.1 of the RIA, entered into between Claimants and the Government, defines a “Dispute” broadly to include: “disputes or claims relating to (a) [the RIA] or the Restated Concession Agreement, (b) any of the investment benefits provided therein or by the New Kumtor Law or other Legislation, or (c) any other matter in relation to Investor, any Project Company or the Kumtor Project, its operations or regulation thereof by the Government or any Government instrumentality or Investor’s investment therein.” Section 11.2 of the RIA requires the parties to “give at least 45 days notice of any Dispute prior to commencing any arbitration (without prejudice to each party’s rights to seek injunctive relief or its equivalent in arbitration).” Section 11.2 of the RIA requires the parties thereafter to “use their best efforts to resolve a Dispute through good faith negotiation” and states that “[a]ny Dispute not resolved by such negotiation shall be resolved by arbitration.” On April 22, 2021 and April 26, 2021, the Claimants delivered a Notice of Dispute to the Government. Accordingly, the 45-day negotiation period expired no later than June 10, 2021. During that time period, the Government failed to make any effort to resolve the dispute, and has instead aggravated the dispute as set forth herein. Section 11.3(a) further states in relevant part: Any party can initiate arbitration by notice of intention to arbitrate to the other party or parties stating the Dispute (as defined in Section 11.1) to be arbitrated. Upon the giving of such notice, the Dispute shall be determined by the arbitration award of an Arbitrator who is agreed upon in writing by the parties. Failing such agreement within four weeks after notice by either party, the Arbitrator shall be appointed upon the application of any party by the United Nations Commission of International Trade Law (‘UNCITRAL’) acting under its rules for conciliation and arbitration (the "Arbitration Rules''). The Arbitrator shall be 21-11051-lgb Doc 90-10 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 10 Pg 7 of 20 Government of the Kyrgyz Republic -6- Kyrgyzaltyn OJSC a person whose profession and experience make him or her qualified to consider the Dispute. Section 11.3(f) further provides that “[a]ny arbitration shall be held at Stockholm, Sweden, or at such other place as may be agreed upon by those involved in the arbitration.” Section 11.3(g) provides that “arbitration proceedings shall be conducted in the English language.” Clause 22 of the GSSA and Section 9.3 of the Management Agreement, each signed also by Kyrgyzaltyn, incorporate the foregoing provisions of the RIA by reference. The Government and the Claimants reaffirmed this same arbitration agreement in 2017 in the SA, while eliminating any requirement for a pre-arbitration negotiation period, simplifying the process for appointment of an arbitrator and agreeing that related arbitrations may be consolidated. Specifically, Section 9.6 of the SA incorporates Section 11.3 of the RIA, and provides in relevant part: The Parties agree that any disputes or claims arising out of or relating to this Agreement shall be subject to the dispute resolution provisions in Section 11.3 of the RIA save that, if the Parties fail to agree to an Arbitrator, the PCA shall act as the Appointing Authority pursuant to the UNCITRAL Arbitration Rules. An arbitral tribunal constituted under this Agreement may, at the request of a party to the arbitration proceedings, consolidate the arbitration proceeding with any other arbitration arising under this Agreement, the Amended and Restated Reclamation Trust Deed or the Existing Project Agreements,[4] if the arbitration proceedings raise common questions of law or fact, and consolidation would not prejudice the rights of any party. The parties’ single arbitration agreement carried over from the 2009 framework agreement, the ANT, that led to the other Investment Agreements. The ANT required Claimants and Respondents to arbitrate “any disputes, claims, differences or 4 The “Existing Project Agreements” include the Investment Agreements defined herein (other than the SA itself). 21-11051-lgb Doc 90-10 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 10 Pg 8 of 20 Government of the Kyrgyz Republic -7- Kyrgyzaltyn О JSC controversies between the Parties arising out of or in connection with” the ANT under rules materially identical to the RIA. C. Choice of Law Provisions Section 6.6 of the ANT provides that the “Agreement on New Terms (and any claims or disputes arising out of or in connection with the same) shall in all respects be governed by and construed in accordance with the laws of the State of New York including all matters of construction, interpretation, validity and enforcement, without regard to any conflict of law rules or principles that might lead to the application of the laws of any other jurisdiction.” Section 10.1 of the RIA states that “disputes arising out of this Agreement or the Restated Concession Agreement shall be resolved under, and this Agreement and the Restated Concession Agreement shall be construed in accordance with, the laws of the State of New York, United States of America.” Clause 21 of the GSSA states that the “Agreement [sjhall be governed by and construed in accordance with the laws of England.” Under Section 9.3 of the Management Agreement, “[a]ll disputes and disagreements that may arise with respect to [the Management] Agreement shall be resolved, and [the Management] Agreement shall be construed, in accordance with Articles X and XI of the Restated Investment Agreement,” which means that New York law applies. Clause 9.5 of the SA provides that the SA, like the ANT, the RIA, and the Management Agreement, “shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to any choice of law or conflict of laws provisions or principles.” D. The Arbitrator As set forth above, the SA states that “if the Parties fail to agree to an Arbitrator, the PCA [Permanent Court of Arbitration] shall act as the Appointing Authority pursuant to the UNCITRAL Arbitration Rules.” Similarly, the ANT, RIA, GSSA, and the Management Agreement all provide that a single arbitrator “shall be appointed upon application of any party by the United Nations Commission of International Trade Law (‘UNCITRAL") acting under its rules for conciliation and arbitration.” UNCITRAL “does not... act as [an] appointing authority” under the 21-11051-lgb Doc 90-10 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 10 Pg 9 of 20 Government of the Kyrgyz Republic -8- Kyrgyzaltyn О JSC UNCITRAL Rules,5 and instead Article 6 of those rules permits “either party [to] request the Secretary-General of the Permanent Court of Arbitration at The Hague to designate an appointing authority” “if the appointing authority agreed upon refuses to act.” The PCA may designate itself as an appointing authority. E. The Conspiracy To Expropriate the Kumtor Mine and Repudiate the Investment Agreements. Beginning in or around December 2020, Respondents, through their agents and instrumentalities, began what now appears to have been a coordinated campaign to expropriate the Kumtor Mine without compensation to Centerra, and thereby repudiate Respondents’ fundamental obligations under the Investment Agreements. In the words of a Kyrgyzaltyn-nominated former member of Centerra’s Board of Directors, the goal of this campaign was to “have Centerra on their knees.” Based on the Claimants’ cunent information and belief, that campaign has included but may not be limited to the following acts: 1. State Tax Service Pursuit of Resolved or Precluded Claims.’ In December 2020, the Kyrgyz Republic State Tax Service (the “STS”) began efforts to pursue historical claims against KGC that were previously resolved and/or are precluded by Article V of the RIA, which sets forth the tax and related payments regime for the life of the Kumtor Mine. In particular, the STS attempted to re-audit KGC’s social insurance payments for 2011 through 2017 even though those periods were previously audited in 2018, and has received several decisions in Kyrgyz courts permitting it to do so. In addition, the STS attempted to revive baseless claims against KGC that (a) alleged taxes are owed on certain dividend payments made to Centerra in 2016 and 2017; (b) alleged additional payroll deductions are owed for national employee compensation from the years 2016 and 2017 based on high-altitude premium and shift premium compensation; and (c) alleged additional payments are owed to the Kyrgyz Republic Social Fund (the “Social Fund”) from the years 2011 through 2017 based on the same high-altitude premiums and shift premiums and on compensation paid to KGC employees who are not Kyrgyz citizens. Each of these claims was previously raised in 2017 or 2018 and abandoned by the Government or dismissed by the Kyrgyz courts, because they are not legitimate claims under the RIA and Kyrgyz law. First, the RIA expressly precludes the Government from taxing dividends paid among the Claimants. Article 5.4(b) of the RIA states unequivocally that the 5 https://uncitral.un.org/en/texts/arbitration/faq [https://perma.cc/T67B-B3RC] 21-11051-lgb Doc 90-10 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 10 Pg 10 of 20 Government of the Kyrgyz Republic -9- Kyrgyzaltyn OJSC Claimants “shall be exempt from paying Taxes with respect to intra-group transactions between them, including for services, dividends, interest, repayment of principal or other distributions or other transactions involving” the Claimants. The Government’s attempts to assess taxes on fully authorized dividend payments made by KGC to Centerra is a clear breach of this provision. Indeed, the State Tax Service conceded as much in 2018 when it accepted KGC’s previous challenge to this claim. Second, the STS’s payroll deduction claims were considered and rejected by Kyrgyz courts because they are contrary to Kyrgyz law. Article 5.3(i) of the RIA requires the Claimants to make payroll deductions only as “required by the prevailing Legislation,” and it is well-settled under Kyrgyz law that high-altitude pay is not considered taxable income subject to payroll deductions. For this reason, the Bishkek Inter-District Court on December 6, 2018 granted KGC’s previous challenge to the Government’s attempt to improperly require such deductions. The Government did not timely appeal that decision, and the dismissal of that case was a fundamental basis for the substantial payments to the Government provided for in the SA and subsequent Deed Poll, dated August 7, 2019 (CX07). Moreover, Kyrgyz courts confirmed in 2020 that high-altitude pay is not subject to personal income tax. (See Court Ruling of the KR Supreme Court, Case No. AD-06/19mbs4 (No. AB-06-512/19AD, K\N No. 6-157/20AD) dated June 15, 2020.) Nevertheless, the Government has orchestrated an illegitimate appeal of the Inter-District Court’s December 2018 decision more than two years after the fact, including by procuring a baseless ruling from the Bishkek City Court reopening the appeal period. Third, the STS’s attempt to require a contribution to the Social Fund or payroll deductions for shift premiums violates the RIA. Under KGC’s long-term agreements with its employees, KGC has never paid shift premiums and instead provides free meal services to its employees. The Government has been well-aware of those labor agreements. Article 5.4(d) of the RIA expressly states that “provision of food at the Kumtor Mine by the Project Companies, free of charge to employees of the Project Companies, shall be exempt from Taxes.” The term “Taxes” is defined to include “taxes, duties, rates, royalties, withholding obligations, deductions or other governmental charges whatsoever, however characterized.” Fourth, KGC does not owe Social Fund payments for non-Kyrgyz citizens who work at the Kumtor Mine. Article 5.3(i) of the RIA requires the Claimants to make Social Fund payments only “in respect of such Project Company employees who are Kyrgyz citizens.” This is consistent with Article 17 of the Republic’s Law on Investments, dated March 27, 2003, which grants the Claimants “the right to transfer payment on social insurance and provision for foreign employeefs] to the respective funds of the foreign state[s] unless otherwise provided by the international agreements.” 21-11051-lgb Doc 90-10 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 10 Pg 11 of 20 Government of the Kyrgyz Republic -10- Kyrgyzaltyn О JSC This means that KGC may fulfill any Social Fund commitments for non-Kyrgyz citizen employees by paying applicable social tax in those employees’ home countries, and there are decisions from Kyrgyz courts to this effect. (See Decision of the Bishkek Inter- District Court dated January 8, 2019 and KR Supreme Court Ruling dated May 19, 2009.) Accordingly, the Government’s attempt to require KGC to pay additional amounts to the Social Fund is contrary to both the RIA and Kyrgyz law. Further, the parties entered into a series of agreements from 2017 to 2019 to resolve numerous claims asserted by the Government. In the SA, the Government represented to Claimants that as of August 2019 the Government had “no actual, pending or threatened Claims or, to their Knowledge, any cause of action, in each case, relating to or in connection with” Claimants “that arose on or after 24 April 2009 and before” August 26, 2019 “other than any Claims ... arising out of, or in connection with Unknown Environmental Damage.” The STS was of course aware of all of the claims they are attempting to re-assert now because they had attempted to assert them before 2019. Based on statements made by Government officials, the Government appears to be using these spurious claims, and the Glacier Lawsuit referenced below, as an excuse to force KGC into a sham insolvency in the Krygyz Republic and strip KGC of its most valuable asset—the Kumtor Mine. Claimants seek a preliminary and final injunction barring the Government from pursuing these spurious claims and damages for breach of the Government’s representations in the SA. Claimants understand that the Government, through the STS, is working to assert additional meritless claims and reserve their right to further amend this Notice to add such claims to this arbitration. 2. The Illegitimate Glacier Lawsuit'. As part of the SA, signed as of September 11, 2017 and fully effective as of August 26, 2019, Claimants agreed to make payments and concessions to the Government of at least $60 million USD, and to make additional annual payments of at least $3.7 million USD to the Government for the life of the Kumtor Mine. In exchange, among other things the Government agreed “on behalf of itself and on behalf of each Government Entity, and ... any other person or entity who is entitled to make a Claim in the name of the KR Government” “never to bring any action, directly or indirectly ... on the subject matter of’ several cases against the Claimants that had been filed in Kyrgyz courts. One of those cases was brought by the Kyrgyz Republic State Inspectorate Office for Environmental and Technical Safety (“SJETS”) and sought “damages for harm allegedly caused to the environment by КОС storing production tails on glaciers.” In addition to agreeing not to bring claims itself, the Government agreed, in Clause 2.2 of SA, “to support” the Claimants and “to uphold the terms” of the SA “in any 21-11051-lgb Doc 90-10 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 10 Pg 12 of 20 Government of the Kyrgyz Republic -11- Kyrgyzaltyn О JSC action brought by any Government Entity or third party acting or purporting to act on behalf of’ the Government. As noted above, the Government further represented that, as of August 26, 2019, it did not have any “actual, pending or threatened Claims or, to [its] Knowledge, any cause of action . . . relating to or in connection with Centerra, KGC, [or] КОС . . . that arose on or after 24 April 2009 and before” August 26, 2019 except claims “in connection with Unknown Environmental Damage.” In March 2021, four KR citizens acting for and in concert with the Government, including the son of the director of the Government’s State Agency for Environment Protection and Forestry (“SAEPF”), filed a lawsuit against KGC in the Oktyabrsky District Court of Bishkek seeking a declaration that “KGC actions related to waste dumping on the Davydov and Lyisi glaciers” were illegal (the “Glacier Lawsuit”). Claimants also sought unspecified “financial sanctions” that would be payable to, and thus sought on behalf of, the Government. According to press reports, two of the claimants in the Glacier Lawsuit are associated with current President of the Kyrgyz Republic, Sadyr Japarov.6 Because the claims in the Glacier Lawsuit were brought by persons purporting to act on the Government’s behalf and were related to the subject matter of a claim released pursuant to the SA, the Government was required to support KGC in the Glacier Lawsuit. Contrary to its contractual obligations under the SA, the Government actively supported claimants’ action. SIETS appeared at court hearings as an interested party beginning on April 29, 2021 and urged the court to rule in favor of the claimants on multiple occasions. Then, on May 3, 2021, without any advance notice to KGC, the claimants amended their complaint to add a damages claim for KGS 261,719,674,080 (approximately $3,087,000,000 USD) payable to the Government. Based on information and belief, Government officials prepared the calculation purporting to justify claimants’ amended demand. In addition, among other things, the Government reduced significantly a filing fee claimants otherwise would have had to pay to make such a demand. With the Government’s full support and without providing KGC any reasonable time to prepare a defense and after dismissing all of KGC’s motions out of 6 Before he became President in October 2020, Sadyr Japarov was charged and convicted of taking a government official hostage as part of a violent protest demanding the nationalization of the Kumtor Mine. https://www.rferl.org/a/kyrgyzstan-japarov-trial- /28531107.html [https://perma.cc/E3T2-7ZYG]; https://www.rferl.org/a/kyrgyzstan- japarov-hostage-taking-charge-jailed/28655237.html [https://perma.cc/XA73-8DQR]. Two of the plaintiffs in the Glacier Lawsuit, Aibek Sarybaev and Nariste Kalchaev, were reportedly convicted of crimes in connection with the same protest, https ://kaktus.media /438087/ [https://perma.cc/JVA6-HXKM] 21-11051-lgb Doc 90-10 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 10 Pg 13 of 20 Government of the Kyrgyz Republic -12- Kyrgyzaltyn О JSC hand, the court held sham hearings on May 4 and May 6 and hastily rendered judgment in claimants’ favor on May 7, purporting to award the Government KGS 261,719,674,080 and even went so far as to award the claimants a filing fee they never paid. Based on statements made by Government officials, the Government appears to be using the Glacier Lawsuit, and tax claims referenced above, as an excuse to force KGC into a sham insolvency in the Krygyz Republic and strip KGC of its most valuable asset—the Kumtor Mine as described below. The Government’s actions, including the judgment procured in the Glacier Case, violate the release and the Government’s support obligations in the SA. Claimants seek a preliminary and final injunction barring enforcement of the Glacier Lawsuit judgment and damages resulting from the Government’s breach of its obligations. 3. Proposed Amendments to the New Kumtor Law and Tax Code'. In April 2021, one or more members of the Jogorku Kenesh proposed additional legislation that if adopted could fundamentally alter the legal foundation of the Kumtor Project and the parties’ agreements by amending the New Kumtor Law that was adopted to specifically ratify the RIA. See On Ratification of the Agreement on New Terms for the Kumtor Project, dated April 24, 2009 (the “New Kumtor Law”). The new legislation, if adopted, would specifically amend the New Kumtor Law by deleting sections of that law that recognized the primacy of the RIA over other Kyrgyz legislation and subjecting the Kumtor mine to certain general legislation, including the Kyrgyz tax laws. Pursuant to the RIA, the parties agreed that the “New Kumtor Law and the other Legislation as modified by the New Kumtor Law shall be stabilized as of June 2, 2009.” In addition, the RIA states that “the rates, amounts and other terms of any Taxes or other payments payable . . . shall not be subject to any future change in Legislation or treaty provisions, which would be more burdensome to the” Claimants. As recently as August 2019, pursuant to the terms of the SA, the Government re-confirmed the validity of the New Kumtor Law and the RIA and all provisions thereof. Claimants seek a preliminary and final injunction barring implementation of the proposed legislation, if enacted, and will seek damages that result from the Government’s breaches of the ANT and RIA. 4. Respondents’ Trojan Horse Nominee to Centerra’s Board of Directors'. On December 4, 2020, Kyrgzaltyn nominated Tengiz Bolturuk as one of its two representatives to the Centerra Board. Upon joining Centerra’s Board, Mr. Bolturuk confirmed that he understood, as a director, that he owed a duty of loyalty to Centerra, and that he would act in the best interests of Centerra at all times. Between December 2020 and May 2021, as a Centerra director, Mr. Bolturuk was provided and had access to 21-11051-lgb Doc 90-10 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 10 Pg 14 of 20 Government of the Kyrgyz Republic -13- Kyrgyzaltyn О JSC confidential and commercially sensitive information about the Kumtor Mine and Centerra. He also had unfettered access to the Kumtor Mine. At the same time, upon information and belief, Mr. Bolturuk was secretly working with Respondents and their U.S. and Canadian legal counsel to hatch a plan to expropriate the Kumtor Mine. In early May 2021, Mr. Bolturuk circulated a WhatsApp audio message championing Respondents’ efforts: Dear compatriots! I[,] Tengiz Bolturuk[,] would like to provide you with some information. [Last February], I came from Canada and I have been actively working, maybe you know from social networks or news, I am the [superintendent] of mining development, working with Kyrgyzaltyn, we are doing its restructuring. As to Kumtor[,] a lot of work is being done, as I gave my word [to you], I gave my word to the President that we will take Kumtor back, and, God willing, it will happen.... We are putting all this together, God willing we will bring Centerra to its knees, right now I can’t give all the details because, all this is being done off the record so that Centerra cannot prepare, and I can’t tell you the secrets. But God willing, believe me, by the end of May we will have finished everything. Everything will be this way, nothing will go the other way for sure. Claimants seek a preliminary and final injunction barring Respondents and their agents from taking further steps to expropriate the Kumtor mine, and will seek damages that resulted from Respondents’ breaches of the Agreements.7 5. Respondents’ Expropriation of the Kumtor Mine Under the Guise of “Temporary Management”'. On April 30, 2021, legislation was introduced and 7 Centerra is separately pursuing a claim for injunctive relief against Mr. Bolturuk in the Ontario Superior Court of Justice based on breaches of his fiduciary and confidentiality duties owed to Centerra as a former member of Centerra’s Board of Directors. That claim is not subject to arbitration. 21-11051-lgb Doc 90-10 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 10 Pg 15 of 20 Government of the Kyrgyz Republic -14- Kyrgyzaltyn OJSC passed by the Jogorku Kenesh after three readings in a single day on May 6, 2021 (one day before judgment was entered in the Glacier Lawsuit) that purportedly permits the Government to take over management of KGC (the “Temporary Management Law”). The Temporary Management Law applies only to KGC and ostensibly allows the Government to suspend “the powers of [KGCJ’s management bodies” and introduce “temporary external management” if KGC’s “right to use subsoil resources” is suspended “on the grounds of violation by [KGC] of the requirements for the protection of subsoil resources, environmental and industrial safety established by the legislation of the Kyrgyz Republic, creating an immediate threat to the life or health of people working or living in the zone of operations influence.” The Temporary Management Law also purports to “vest” with the “temporary external managers]” “all the powers of the company’s executive body” including power over “[a]ll bank accounts for the company.” Further, the Law purports to limit the rights of KGC’s duly appointed board and its shareholders from “giving direct instructions, orders or any other instructions in the form of a request or recommendation to the temporary external manager.” The Government has created a new crime for violating the Temporary Management Law, apparently in an effort to chill Claimants’ ability to protect their interests in the Kumtor Mine and rights under the Investment Agreements. Any claim that the KGC’s operation of the Kumtor Mine created “an immediate threat to the life or health of people working or living in the zone of operations influence” is wholly false and without foundation. The Kumtor Mine’s environmental performance adheres to international standards and has been audited multiple times by, among others, the Kyrgyz Government’s own environmental consultant, AMEC Foster Wheeler. Moreover, the Government, including the Kyrgyz Republic State Agency for Environment and Forestry Protection, has approved Kumtor’s mine plans each year, which include detailed waste rock dumping plans that provide for the manner and location of placement of any waste rock generated from mining activities. On May 14, 2021, the Temporary Management Law was signed into law by President Japarov but the Government did not purport to invoke the law at that time.8 Beginning on May 15, 2021, Respondents effectively seized control over the Kumtor Mine when Government agents invaded the mine and KGC’s office in Bishkek. Additionally, senior KGC personnel were subjected to visits by security services to their homes and threatened with unjustified criminal action, and IT personnel were forced https://24.kg/english/193950_Sadyr_Japarov_approves_imposition_of external_management_on_companies/ [https://perma.cc/27KC-3WKT] 21-11051-lgb Doc 90-10 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 10 Pg 16 of 20 Government of the Kyrgyz Republic -15- Kyrgyzaltyn OJSC from their homes and brought to the mine in an effort by the Government to infiltrate Centerra’s global IT systems and apparently to misappropriate proprietary information for Respondents’ own use in running the mine. In contrast to their obligations under the Investment Agreements and applicable fiduciary duties, Kyrgyzaltyn and its agents and representatives actively supported the Government’s efforts to seize the Kumtor Mine. Among other things, after the Government apparently did not locate certain senior KGC managers to intimidate during its weekend raids, Kyrgyzaltyn sent Centerra a letter on May 16, 2021 feigning “concern” about those managers’ absence from the Kyrgyz Republic. Kyrgyzaltyn also alleged that Centerra had taken actions to suspend or freeze KGC’s operations, which was false. Having already seized control of the Kumtor Mine, Respondents then sought to dress up the taking through invocation of the new Temporary Management Law. On May 17, 2021, the Jogorku Kenesh adopted a resolution instructing the Government to use its newfound authority under the Temporary Management Law to impose temporary external management on KGC. But the facade of legality fails even on its own terms. The newly minted Temporary Management Law requires as a condition to imposition of a temporary manager that the Mine’s “right to use subsoil resources” be suspended on the grounds of “an immediate threat to the life or health of people working or living in the zone of operations influence.” The Mine’s operations had not been Suspended as of May 15, 2021, and press reports widely report that the Mine has continued in operation without interruption to this day. On May 18, 2021, President Japarov announced that the Government would appoint Mr. Bolturuk, the Trojan horse director Centerra director, as the temporary manager of KGC and the Kumtor Mine. Among other things, Respondents have claimed to have “stepped up” “[djrilling operations” since taking control of the mine, and upon information and belief Respondents are planning to deviate from KGC’s mine plan.9 By doing so, Respondents are placing the future sustainability and safety of the mine, its workers and surrounding communities at grave risk. Respondents’ implementation of the Temporary Management Law, the purported installation of the temporary manager at KGC, and the seizure of the Kumtor Mine breach Claimants’ most fundamental rights under the ANT, RIA and related Investment Agreements, including but not limited to guarantees against expropriation. Indeed, at a June 8, 2021 hearing before the United States Bankruptcy Court for the https://24.kg/english/194654_Tengiz_Bolturik_tells_about_plans_for_operation of_Kumtor_mine_____I [https://perma.cc/N6UC-HT2U] 21-11051-lgb Doc 90-10 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 10 Pg 17 of 20 Government of the Kyrgyz Republic -16- Kyrgyzaltyn OJSC Southern District of New York, Respondents’ counsel admitted that “there was an expropriation event” at the Kumtor Mine, recognizing that the Temporary Management Law was not “temporary” at all. Among the rights that Respondents have violated are: (i) RIA Article 6.1’s prohibition on Expropriatory Action, which includes “any action . .. that is confiscatory in effect or that otherwise deprives the direct or indirect owner of the asset... subject to such action or effective control thereof’; (ii) RIA Article 6.1’s requirement, in the event Expropriatory Action occurs and “[wjithout limiting the binding effect and enforceability” of the prohibition on Expropriatory Action, that if Expropriatory Action is “wholly or partially consummated, the Government shall, simultaneously therewith, pay to” Centerra the pre-expropriation “fair market value” of the expropriated asset; (iii) RIA Article 2.2’s guarantee that the “Project Companies,” including KGC, “shall be governed as provided in their respective charters” and “[ojnly shareholders of the relevant Project Company shall be entitled to any voting or other rights in respect of that Project Company’s corporate matters”; and (iv) RIA Article 6.3’s prohibition on subjecting the Claimants to “Legislation that is, either by its terms or in its effect, discriminatory.” As a party to the ANT and other Investment Agreements, Kyrgyzaltyn also was obliged not to take any steps to expropriate the Kumtor Mine or interfere with any of Claimants’ other investment rights. Claimants seek a preliminary and final injunction barring further implementation of the Temporary Management Law with respect to Kumtor and a return to the pre-arbitration status quo. Claimants will also seek an award of any and all damages resulting from Respondents’ breaches of the Investment Agreements and related agreements. 6. Further Threats of Nationalization -. The actions and statements of Mr. Bolturuk and other Government officials indicate that Respondents intend to use the Glacier Lawsuit and tax proceedings as set forth supra, to nationalize the Kumtor Mine by bankrupting KGC and seizing its assets. In addition, according to news reports, Respondents have already stolen and sold at least 44,000 ounces of gold from the mine and received at least USD $40 million in profits for their own use. Nothing in the Temporary Management Law remotely suggests Respondents may take over management and abscond with the Kumtor Mine’s gold or other minerals. Claimants seek a preliminary and final injunction barring further efforts to cause the transfer of any KGC assets, including any dore produced at the Kumtor Mine, in violation of the RIA and related agreements. 7. Respondents’ Breaches of the GSSA: The last shipment of dore from the Kumtor Mine before imposition of temporary management was delivered to Kyrgyzaltyn on May 9, 2021, and payment for that shipment—approximately $26 21-11051-lgb Doc 90-10 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 10 Pg 18 of 20 Government of the Kyrgyz Republic -17- Kyrgyzaltyn OJSC million—was due to KGC on May 21 pursuant to Section 4.1 of the GSSA. The payment was supposed to go directly from StoneX Financial Ltd. (“StoneX”), the foreign buyer of the gold produced at the Kumtor Mine and refined by Kyrgyzaltyn, to a bank account designated by KGC. Under Section 4.1 of the GSSA, Kyrgyzaltyn was contractually obliged to deliver the gold and cause this payment to occur. Pursuant to Section 2.1, the Government unconditionally guaranteed Kyrgyzaltyn’s performance of all its obligations under the GSSA. On May 12, 2021, days before the seizure of the Mine, an email delivered from a Kyrgyzaltyn email address attached a written instruction, seemingly signed by a KGC representative, that directed StoneX to make the May 21 payment to a different bank account, one that was not opened by KGC. The instruction was a forgery: on information and belief, Kyrgyzaltyn took a valid, authorized payment instruction issued on May 9, 2021 directing payment to an authorized bank account in New York and signed and sealed by KGC, and inserted wiring information for the unauthorized bank account at a different New York bank over the wiring information for the correct account. Through this blatant fraud attempt, Kyrgyzaltyn appears to have been testing whether it could unilaterally change payment instructions to StoneX without the Claimants’ authorization, in anticipation of Respondents’ plan to expropriate the Kumtor Mine days later. The fraud was intercepted when StoneX wrote to KGC and Centerra representatives to confirm the new payment instructions. Respondents continue to breach the GSSA. Upon information and belief and according to news reports, the external manager continues to deliver dore to Kyrgyzaltyn, and Kyrgyzaltyn continues to refine it. However, Kyrgyzaltyn has failed to deliver that gold to StoneX, in violation of Section 4.4 of the GSSA and payment for that gold has not been transferred to KGC’s HSBC bank account as specified in the GSSA. Claimants therefore seek specific performance of the GSSA and will seek damages for Respondents’ continuing breach of that agreement. 8. Kyrgyzaltyn’s Breaches of the Management Agreement'. Under Section 3.3 of the Management Agreement, KGC has paid Krygyzaltyn a fee of one- dollar per ounce of gold the Kumtor Mine produces “for the services rendered by Kyrgyzaltyn.” These services include assisting “with the resolution of issues that are subject to the jurisdiction of the Kyrgyz governmental bodies, including with respect to tax, financial, economic and legal matters that may arise in the course of the Kumtor Project operations” and preparing “statements submitted to planning, financial and statistical Kyrgyz governmental bodies.” Rather than assisting Claimants, Kyrgyzaltyn has actively supported and participated in Respondents’ expropriation of the Kumtor 21-11051-lgb Doc 90-10 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 10 Pg 19 of 20 Government of the Kyrgyz Republic -18- Kyrgyzaltyn OJSC Mine. Claimants accordingly will seek damages for Kyrgyzaltyn’s breach of its obligations under the Management Agreement. 9. Kyrgyzaltyn’s Efforts To Remove Assets in Canada'. On May 13, 2021, mere days before the Government took control of the Kumtor Mine, Kyrgyzaltyn filed a Form 45-102F1 Notice of Intention to Distribute Securities with a Canadian securities regulator indicating that Kyrgyzaltyn intended to sell 14,825,512 Centerra shares (approximately 20% of Kyrgyzaltyn’s shares and just under 5% of Centerra’s total outstanding shares) on the Toronto Stock Exchange. This filing was apparently part of an attempt to remove assets from Canada and to liquidate some of Kyrgyzaltyn’s Centerra shares before Respondents’ expropriation of the Kumtor Mine. Removing attachable assets from Canada, a jurisdiction that respects and enforces duly issued arbitral awards, was likely important to Respondents because the Kyrgyz Republic has a long history of defaulting on such awards. See, e.g., Sistem Muhendislik Insaat Sanayi Ve Ticaret, A.S. v. Kyrgyz Republic, 2020 WL 7890222, at *4 (S.D.N.Y. Nov. 5, 2020) (“The Republic’s conduct has been and continues to be, in a word, contemptuous” in proceedings to enforce arbitral award, and imposing sanctions). Claimants seek a preliminary injunction barring Respondents from transferring, encumbering or otherwise modifying Centerra shares held by or on behalf of Respondents during the pendency of this arbitration. F. Relief Sought Pursuant to Article 3 of the UNCITRAL Rules, Claimants seek in this arbitration: (i) declaratory relief; (ii) injunctive relief or the equivalent; (iii) damages; (iv) an award of the costs of the arbitration, including costs for legal representation; and (v) any other relief that the arbitrator may deem just and proper. As indicated above, immediate interim measures are needed to enjoin the Respondents and any person or entity acting in concert with them, from (i) attempting to enforce the judgment in the Glacier Lawsuit against any Claimant; (ii) continuing to interfere with Claimants’ rights to the Kumtor Mine; (iii) continuing to impose “temporary external management” on KGC under the Temporary Management Law; (iv) failing to comply Article 6.1 of the RIA’s requirement to pay, in the event of expropriatory action, compensation “simultaneously therewith”; (v) transferring, encumbering, or otherwise modifying Centerra shares held by or on behalf of Respondents during the pendency of this arbitration; (vi) pursuing historical tax claims that have been previously resolved or dismissed; (vii) implementing any proposed changes to the ANT or Tax Code that would undermine the stabilization rights or any 21-11051-lgb Doc 90-10 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 10 Pg 20 of 20 Government of the Kyrgyz Republic -19- Kyrgyzaltyn О JSC other rights the Claimants have under the Investment Agreements; (viii) taking any steps to extract or monetize any gold or other minerals at the Kumtor Mine without prompt payment to Claimants of amounts owed under the GSSA; (ix) taking any steps to sell, transfer or encumber any assets of KGC; (x) taking any steps to intimidate potential witnesses or other individuals relevant to the Dispute; or (xi) otherwise aggravating the dispute. The Claimants reserve their right to further amend this Notice to include additional claims and parties. Sullivan & Cromwell LLP (Attachments) cc: Tim Smith Alice Osman Joel I. Greenberg Alexander Shaknes (Arnold & Porter) 21-11051-lgb Doc 90-11 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 11 Pg 1 of 10 EXHIBIT 11 21-11051-lgb Doc 90-11 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 11 Pg 2 of 10 21-11051-lgb Doc 90-11 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 11 Pg 3 of 10 TRANSLATION FROM RUSSIAN GD-3358/21B1 ORDER July 06, 2021 Bishkek Judge M.A. Zholdoshova of the Leninsky District Court of Bishkek, having reviewed the application for interim measures filed by the Center for Court Representation of the Government of the Kyrgyz Republic and Kumtor Gold Company Closed Joint-Stock Company, FOUND AS FOLLOWS: The Center for Court Representation of the Government of the Kyrgyz Republic and Kumtor Gold Company CJSC filed a claim with the court against Centerra Gold Inc. for the annulment of the May 31, 2021 Written Resolutions of the Extraordinary Shareholders’ Meeting of Kumtor Gold Company CJSC. Together with the statement of claim, the claimants filed an application for interim measures, arguing that on June 07, 2021, the claimants learned of the existence of the May 31, 2021 Written Resolutions of the Extraordinary Shareholders’ Meeting of Kumtor Gold Company CJSC (KGC) (hereinafter the “Shareholder’s Resolution”), whereby the sole shareholder of KGC (Centerra Gold Inc.) resolved to refer KGC’s Chapter 11 case (pursuant to the disputed resolution of the extraordinary general shareholders’ meeting of KGC) to the United States Bankruptcy Court for the Southern District of New York. As indicated by the Shareholder Resolution, the defendant initiated a Chapter 11 Case (as defined in the Shareholder Resolution) in the United States Bankruptcy Court for the Southern District of New York, including the matter of restructuring KGC. The Claimants consider the Shareholder Resolution to be unlawful and in violation of Kyrgyz legislation, under which KGC is incorporated and is a validly existing company, as well as the Law of the Kyrgyz Republic “On Joint- Stock Companies” and the Charter of KGC; the Claimants believe that it should be annulled. Accordingly, the Claimants filed a statement of claim with the Leninsky District Court of Bishkek for the annulment of the May 31, 2021 Written Resolutions of the Extraordinary Shareholders’ Meeting of Kumtor Gold Company CJSC. Based on the content of the Shareholder Resolution, they believe there is a high likelihood that, based on the unlawfully adopted Shareholder Resolution, the aforementioned bankruptcy court may enter a judgment that adversely affects KGC’s operations and could lead to the suspension of activity at the Kumtor mine, which is being developed by the Claimant. According to Article 7.1(b) of the Restated Investment Agreement among the Government of the Kyrgyz Republic on behalf of the Kyrgyz Republic, Centerra Gold Inc., Kumtor Gold Company CJSC, and Kumtor Operating Company CJSC, signed on June 6, 2009, KGC’s activity and the operation of the Kumtor project may not be suspended. In order to avoid the adverse consequences of the suspension of KGC’s activity and the operation of the Kumtor mine, which will also adversely affect the economy of the Kyrgyz Republic (given KGC’s status as a major contributor to the national budget), the Shareholder Resolution should immediately be suspended until such time as a judgment is issued by the Leninsky District Court of Bishkek and enters into force. According to Article 142 of the Civil Procedure Code of the Kyrgyz Republic, a court may adopt interim measures to secure a claim at the request of the parties to a case. A claim may be secured once the court has agreed to hear the claim and at any stage of the proceedings if failure to adopt such measures could complicate or render impossible the execution of the court’s judgment. Based on the foregoing and pursuant to Articles 142 and 144 of the Civil Procedure Code of the Kyrgyz Republic, the Claimants request that the court suspend the May 31, 2021 Written Resolutions of the Extraordinary Shareholders’ Meeting of Kumtor Gold Company CJSC [signature] US 170100730v1 21-11051-lgb Doc 90-11 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 11 Pg 4 of 10 TRANSLATION FROM RUSSIAN until such time as a judgment is issued concerning the Claimants’ claim for the annulment of the May 31, 2021 Written Resolutions of the Extraordinary Shareholders’ Meeting of Kumtor Gold Company CJSC, and that judgment enters into legal force. Subsequently, the claimants filed an amended application for interim measures to secure the claim for the annulment of the May 31, 2021 Written Resolutions of the Extraordinary Shareholders’ Meeting of Kumtor Gold Company CJSC, according to which, in view of the need to clarify the arguments contained in the initial application and the expansion of the interim measures, the initial application was being replaced with the amended one. As indicated in the statement of claim, the Resolutions adopted by the shareholder (Centerra Gold Inc.) are unlawful and should be annulled on the grounds that they were issued contrary to the requirements of Kyrgyz legislation. In the disputed Written Resolutions (specifically resolutions 1, 2, 3, 4, 5, 6, and 7), the shareholder (Centerra Gold Inc.) resolves to file the Petitions and the Initial Filings with the United States Bankruptcy Court for the Southern District of New York and verifies the authority of its named representatives to execute and verify the petition, initial filings, and ancillary documents and to act with full rights and authority on behalf of KGC, including, but not limited to, the right to execute, swear to, acknowledge, deliver and file with the courts for their consideration any schedules, lists, motions, applications or other papers or documents that KGC deems necessary or appropriate to enable KGC to carry out the intent and accomplish the purposes of the adopted resolutions (in order to initiate and support KGC’s bankruptcy). Acting in this exact manner through its authorized representatives, Centerra Gold Inc. filed a corresponding petition with the US bankruptcy court on behalf of KGC, resulting in an automatic stay, which affected KGC’s operations due to suppliers’ refusal to deliver inventory purchased by KGC. Thus, KGC suffered significant damage. However, under Kyrgyz legislation, a shareholder is not entitled to confirm or grant any authority to third parties to act on behalf of the legal entity. Furthermore, Daniel R. Desjardins, Darren Millman, and Dennis Kwong, who are named in resolution 3 of part I of the Shareholder Resolution, lack any permissions or instructions and do not have the powers to which they refer, granted by KGC. According to Article 38 of the Law of the Kyrgyz Republic “On Joint-Stock Companies”, a general shareholders’ meeting is not entitled to pass resolutions on matters that the Law reserves to the competence of the company’s other management bodies. The competence of the management bodies is defined by KGC’s Charter, which, according to Article 11 of the Law of the Kyrgyz Republic “On Joint-Stock Companies”, is the company’s constitutional document, the requirements of which are binding on all of the company’s bodies, including its shareholder. According to Article 11.2 of KGC’s Charter, only the President, who, according to Article 10.2.1 of the Charter, constitutes the executive management body of KGC with the authority to decide all aspects of its day-to-day activity, is entitled to act on behalf of KGC, represent its interests, enter into transactions, etc., without a power of attorney. It is KGC’s President who conducts its day-to-day management and issues binding orders and instructions. By Order of the Cabinet of Ministers of the Kyrgyz Republic dated May 17, 2021, KGC was placed under temporary external management. According to paragraph 6 of the Procedure for Appointing a Temporary External Manager, approved by Resolution No. 7 of the Cabinet of Ministers of the Kyrgyz Republic dated May 17, 2021, from the moment the temporary external manager is appointed, the authority of the company’s executive body is suspended for the duration of the temporary external management. The temporary manager is granted all the powers of the company’s executive body. Thus, it is only the temporary external manager that possesses the authority of the President of KGC and may , on the basis of Articles 7.1 and 11.2 of KGC’s Charter, currently act on behalf of KGC, represent its interests, enter into transactions, and decide other aspects of KGC’s day-to-day operations, including the appointment of representatives, etc., without a power of attorney. Centerra Gold Inc. does not possess the powers granted to the temporary external [signature] US 170100730v1 21-11051-lgb Doc 90-11 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 11 Pg 5 of 10 TRANSLATION FROM RUSSIAN manager and is therefore not entitled to make decisions on matters that the Law of the Kyrgyz Republic “On Joint-Stock Companies” assigns to the competence of the company’s other management bodies. In addition, Article 65(2) of the Law of the Kyrgyz Republic “On Joint-Stock Companies” prohibits a shareholder or members of the board of directors from interfering in the day-to-day management of a company. The Shareholder Resolution (part II) contains resolution 1, authorizing KGC’s representatives to conduct negotiations on its behalf to obtain DIP Financing (attract loan funds) in order to pay for services and cover expenses related to KGC’s bankruptcy case. Centerra Gold Inc. recognized the representatives who were authorized to apply for and conduct negotiations with respect to obtaining financing for KGC, including for the purpose of paying for the services of consultants, agents and other bankruptcy petition designations, and to receive such financing for KGC, and stated that such financing could be secured with substantially all of KGC’s assets. The implementation of such a resolution by persons who do not possess the properly formalized authority under Kyrgyz law poses a threat to KGC’s operations and threatens the interests of the Kyrgyz Republic, which has an interest in the continuous operation of the Kumtor mine. The Shareholder’s Resolution (part III) includes resolutions 1 and 2, whereby Centerra Gold Inc. authorizes Daniel R. Desjardins, Darren Millman, and Dennis Kwong to take any steps and execute, deliver or file with the courts for their consideration any certificates, legal instruments, and papers that they deem appropriate to enable KGC to carry out the intent and accomplish the purposes of the resolutions passed in this document. It also approves all of the actions taken by the authorized representatives as lawful and performed on behalf of KGC. As indicated above, Centerra Gold Inc. does not possess the powers granted to the temporary external manager and is therefore not entitled to make decisions on matters that the Law of the Kyrgyz Republic “On Joint-Stock Companies” assigns to the competence of the company’s other management bodies. Obviously, implementing the Shareholder’s Resolutions could have irreversible consequences for KGC and the Kyrgyz economy (KGC is a major contributor to the national budget), which could complicate the enforcement of the judicial act if its claim for the annulment of the May 31, 2021 Written Resolutions of the Extraordinary Shareholders’ Meeting of Kumtor Gold Company CJSC is granted. Any subsequent appeal of the actions taken by KGC’s authorized representatives on its behalf would require a substantial amount of time, effort and resources and would be detrimental to KGC’s interests and operations. All other things apart, Article 7.1. (b) of the Restated Investment Agreement among the Government of the Kyrgyz Republic on behalf of the Kyrgyz Republic, Centerra Gold Inc., KGC, and Kumtor Operating Company CJSC, executed on June 6, 2009, KGC’s provides that the activity and the operation of the Kumtor project are not subject to suspension. In order to avoid the adverse effects of a termination of KGC’s activities and the operation of the Kumtor mine, based on the foregoing and pursuant to Articles 142 and 144 of that Civil Procedure Code of the Kyrgyz Republic, the claimants request that the court suspend the May 31, 2021 Written Resolutions of the Extraordinary Shareholders’ Meeting of Kumtor Gold Company CJSC, adopted by Centerra Gold Inc. in its capacity as the sole shareholder of Kumtor Gold Company CJSC, and prohibit the following authorized representatives named in Resolutions 3, 4, 5, 6 and 7 of part I and Resolutions 1 and 2 of Part III of the May 31, 2021 Written Resolutions of the Extraordinary Shareholders’ Meeting of Kumtor Gold Company CJSC: Daniel R. Desjardins, Darren Millman, Dennis Kwong, the law firm of Sullivan & Cromwell LLP (“S&C”), and the law firm of Stikeman Eliot LLP (“Stikeman”) from acting on behalf of Kumtor Gold Company CJSC for the purposes of carrying out the resolutions or from taking any other steps directly or indirectly associated with carrying out the May 31, 2021 Written Resolutions of the Extraordinary Shareholders’ Meeting of Kumtor Gold Company CJSC. The judge, having examined the application, finds as follows: According to Article 142(1) of the Civil Procedure Code of the Kyrgyz Republic, a court may adopt interim measures to secure a claim at the request of the parties to a case. A claim may [signature] US 170100730v1 21-11051-lgb Doc 90-11 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 11 Pg 6 of 10 TRANSLATION FROM RUSSIAN be secured once the court has agreed to hear the claim and at any stage of the proceedings if failure to adopt such measures could complicate or render impossible the execution of the court’s judgment. By virtue of Article 144(2) of the Civil Procedure Code of the Kyrgyz Republic, a court (or judge) may, if necessary, adopt other measures to secure a claim that are consistent with the goals set out in Article 142 of the Code. A court may grant multiple types of interim measure. Based on the provisions of the aforementioned articles, which govern the use of interim measures, the law defines the circumstances that must be proven in order to adopt interim measures: the existence of a real threat of non-execution of a judgment due to the actions of the defendant or third parties, and the proportionality of the interim measures to the filed claim. As indicated in the statement of claim, the claimants request the court to annul the May 31, 2021 Written Resolutions of the Extraordinary Shareholders’ Meeting of Kumtor Gold Company CJSC, whereby it was resolved, among other things, to file a petition with the United States Bankruptcy Court for the Southern District of New York, to appoint representatives authorized to act on behalf of Kumtor Gold Company CJSC, and to obtain loan funds for Kumtor Gold Company CJSC. Since the court’s decision whether or not to adopt interim measures is based on the subject matter and basis of the claim and its potential judgment concerning the claim, and considering that failure to adopt interim measures, in the event that the claim is granted, will complicate the execution of the court’s judgment or render such execution entirely impossible, including for the purposes of preventing significant damage to the applicants, the judge deems it possible to grant the application for interim measures. Based on the foregoing and pursuant to Articles 142, 144-145, 146(1), and 224-225 of the Civil Procedure Code of the Kyrgyz Republic, the judge RULES AS FOLLOWS: To grant the application for interim measures filed by the Center for Court Representation of the Government of the Kyrgyz Republic and Kumtor Gold Company Closed Joint-Stock Company. The suspend the May 31, 2021 Written Resolutions of the Extraordinary Shareholders’ Meeting of Kumtor Gold Company CJSC, adopted by Centerra Gold Inc. in its capacity as the sole shareholder of Kumtor Gold Company CJSC. To prohibit the following authorized representatives named in Resolutions 3, 4, 5, 6 and 7 of part I and Resolutions 1 and 2 of Part III of the May 31, 2021 Written Resolutions of the Extraordinary Shareholders’ Meeting of Kumtor Gold Company CJSC: Daniel R. Desjardins, Darren Millman, Dennis Kwong, the law firm of Sullivan & Cromwell LLP (“S&C"), and the law firm of Stikeman Eliot LLP (“Stikeman”) from acting on behalf of Kumtor Gold Company CJSC for the purposes of carrying out the resolutions or from taking any other steps directly or indirectly associated with carrying out the May 31, 2021 Written Resolutions of the Extraordinary Shareholders’ Meeting of Kumtor Gold Company CJSC. To send a copy of this order to Centerra Gold Inc. and Kumtor Gold Company CJSC for execution. A procedural appeal against this order may be filed with the Bishkek City Court within a period of ten days. Judge [signature] M.A. Zholdoshova [seal:] Leninsky District Court of Bishkek, Kyrgyz Republic True copy Judge M.A. Zholdoshova [signature] US 170100730v1 21-11051-lgb Doc 90-11 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 11 Pg 7 of 10 21-11051-lgb Doc 90-11 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 11 Pg 8 of 10 21-11051-lgb Doc 90-11 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 11 Pg 9 of 10 21-11051-lgb Doc 90-11 Filed 07/17/21 Entered 07/17/21 18:06:05 Exhibit 11 Pg 10 of 10