21-11051-lgb Doc 44 Filed 07/06/21 Entered 07/06/21 22:24:34 Main Document Pg 1 of 71 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK x : Chapter 11 In re: : : Case No. 21-11051 (LGB) Kumtor Gold Company CJSC and Kumtor Operating : Company CJSC,1 : Jointly Administered : Debtors. : ____________________________________________ x STATEMENT OF FINANCIAL AFFAIRS FOR KUMTOR GOLD COMPANY CJSC (CASE NO. 21-11051) 1 The Debtors’ corporate headquarters is located at 24 Ibraimova Street, 720001, Bishkek, the Kyrgyz Republic. 21-11051-lgb Doc 44 Filed 07/06/21 Entered 07/06/21 22:24:34 Main Document Pg 2 of 71 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ____________________________________________ x : In re Chapter 11 : : Case No. 21-11051 (LGB) Kumtor Gold Company CJSC and Kumtor Operating : 1 Company CJSC, : Jointly Administered : Debtors. : ____________________________________________ x BASIS OF PRESENTATION AND RESERVATION OF RIGHTS REGARDING SCHEDULES OF ASSETS AND LIABILITIES, SCHEDULES OF CURRENT INCOME AND EXPENSES, SCHEDULES OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES AND STATEMENTS OF FINANCIAL AFFAIRS The Schedules of Assets and Liabilities (collectively, the “Schedules”) and the Statements of Financial Affairs (collectively, the “Statements” and, together with the Schedules, the “Schedules and Statements”) filed by Kumtor Gold Company CJSC (“KGC”) and Kumtor Operating Company CJSC (“KOC”) (each, a “Debtor”) in these jointly administered chapter 11 cases in the United States Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”) have been prepared pursuant to section 521 of title 11 of the United States Code, 11 U.S.C. §§ 101 et seq. (the “Bankruptcy Code”) and rule 1007 of the Federal Rules of Bankruptcy Procedure by management of the Debtors with the assistance of their court- appointed advisors and are unaudited. Although management has made reasonable efforts to ensure that the Schedules and Statements are as accurate and complete as possible under the circumstances based on information that was available to them at the time of preparation, subsequent information or discovery may result in material changes to these Schedules and Statements, and inadvertent errors or omissions may exist. Because, among other things, the Schedules and Statements contain unaudited information, which is subject to further review and 1 The Debtors’ corporate headquarters is located at 24 Ibraimova Street, 720001, Bishkek, the Kyrgyz Republic. 21-11051-lgb Doc 44 Filed 07/06/21 Entered 07/06/21 22:24:34 Main Document Pg 3 of 71 potential adjustment, there can be no assurance that these Schedules and Statements are complete. Nothing contained in the Schedules and Statements shall constitute a waiver of any rights with respect to these chapter 11 cases, including, without limitation, issues involving substantive consolidation, equitable subordination and/or causes of action arising under the provisions of chapter 5 of the Bankruptcy Code and other relevant non-bankruptcy laws to recover assets or avoid transfers. As discussed in greater detail in the Declaration of Daniel Desjardins in Support of the Debtors’ Chapter 11 Petitions and First Day Pleadings [D.I. 9], as supplemented [D.I. 26], beginning on May 15, 2021, the government of the Kyrgyz Republic (the “Kyrgyz Government”) began to take actions to seize the Debtors’ operations at the Kumtor Mine in the Kyrgyz Republic, effectively seizing full operational control by May 17, 2021 (the “Expropriation Event”). As a result of the Expropriation Event, the Debtors no longer have complete access to their books and records, in particular many of the books and records located in the Kyrgyz Republic. In order to prepare the Schedules and Statements, the Debtors have relied on financial statements and supplemental information available as of May 14, 2021, the last date on which the Debtors had full control of their assets and operations (which in certain instances reflects the last financial close of April 30, 2021). In certain cases, the Debtors have been able to provide updated information or estimates based on available resources. The Debtors reserve all rights to amend or supplement the Schedules and Statements in all respects as may be necessary or appropriate and will amend or supplement the Schedules and Statements as may be necessary or appropriate upon gaining access to any books and records that are currently unavailable to the Debtors. -2- 21-11051-lgb Doc 44 Filed 07/06/21 Entered 07/06/21 22:24:34 Main Document Pg 4 of 71 Contingent Assets. The Debtors may not have set forth all of their causes of action against third parties as assets in their Schedules and Statements. The Debtors reserve all rights with respect to any claims, counter claims, causes of action or avoidance actions they may have and nothing contained herein or the Schedules and Statements shall be deemed a waiver of any such claims, avoidance actions or causes of action or in any way prejudice or impair the assertion of such claims. Classifications. Listing a claim on Schedule E/F as “priority” or “unsecured nonpriority,” or listing a contract on Schedule G as “executory” or “unexpired,” does not constitute an admission by the Debtors of the legal rights of the claimant, or a waiver of the Debtors’ right to recharacterize or reclassify such claim or contract. The Debtors reserve all rights to amend the Schedules and Statements to recharacterize or reclassify any such contract or claim. Schedule E/F - Creditors Holding Unsecured Priority Claims. Claims that Debtors are allegedly owing to various taxing authorities are subject to offset against amounts owed to the Debtors by the Kyrgyz Government due to the Kyrgyz Government’s breach of various agreements that Debtors were parties to. The Debtors reserve all rights to amend the Schedules and Statements to adjust alleged claims subject to offset or to assert offset rights. Schedule E/F - Creditors Holding Unsecured Nonpriority Claims. The Debtors have used their best efforts to report all general unsecured claims against the Debtors on Schedule E/F based upon the Debtors’ existing books and records. The claims of individual creditors for, among other things, products, goods or services are listed as either the lower of the amounts invoiced by such creditor or the amounts entered on the Debtors’ books and records and may not reflect credits or allowances due from such creditors to the Debtors. Trade accounts -3- 21-11051-lgb Doc 44 Filed 07/06/21 Entered 07/06/21 22:24:34 Main Document Pg 5 of 71 payable claim amounts identified on Schedule E/F reflect the payables owed based on the Debtors’ books and records as of May 14, 2021. The Debtors reserve all rights with respect to any such credits and allowances, including the right to assert claims objections and/or offsets with respect to same. Schedule E/F related to litigation contains information regarding pending litigation or asserted claims involving the Debtors. The Debtors expressly reserve the right to dispute the validity of any such claims. Designations. Any failure to designate a claim on the Schedules and Statements as “disputed,” “contingent” or “unliquidated” does not constitute an admission by the Debtors that such amount is not “disputed,” “contingent” or “unliquidated.” The Debtors reserve the right to dispute any claim reflected on their Schedules or Statements on any grounds, including, without limitation, amount, liability or classification, or to otherwise subsequently designate such claims as “disputed,” “contingent” or “unliquidated.” Schedule G - Unexpired Leases and Executory Contracts. Schedule G contains the Debtors’ contracts and agreements on or about February 2021, which was the date of the latest record available to the Debtors. While every effort has been made to ensure the accuracy of Schedule G, inadvertent errors, omissions or overinclusion may have occurred. Some of the contracts, agreements and leases listed on Schedule G may have expired or may have been modified or amended. The presence of a contract or agreement on Schedule G does not constitute an admission by the Debtors that such contract or agreement is an executory contract or unexpired lease. The Debtors hereby reserve all of their rights to dispute the validity, status or enforceability of any contract or other agreement set forth in Schedule G. -4- 21-11051-lgb Doc 44 Filed 07/06/21 Entered 07/06/21 22:24:34 Main Document Pg 6 of 71 In the ordinary course of business, the Debtors lease equipment from certain third-party lessors for use in the daily operation of their business. Any such leases are set forth in Schedule G and any current amount due under such leases that were outstanding as of May 14, 2021 is listed on Schedule F. Nothing in the Schedules is or should be construed as an admission or determination as to the legal status of any lease (including whether any lease is a true lease or a financing arrangement), and the Debtors reserve all rights with respect to any of such issues, including the recharacterization thereof. Statements of Financial Affairs Question 3 - Payments to Creditors. For purposes of Question 3, the dates set forth in the “Payment Date” column relate to one of the following: (a) the date of a wire transfer; (b) the date of an “ACH” payment; (c) check payment date or (d) the date of automatic draw. Payments or transfers made within the 90 days before the petition date to insiders are included in Question 4, and not listed on Question 3. Question 4 - Payments to or for the Benefit of Insiders. Payments, distributions and withdrawals credited or given to insiders listed under this question include transfers and payments that benefited any insider made within one year of the petition date that would otherwise be included in Question 30 herein.