5 years ago

iesy Repository GmbH - Irish Stock Exchange

iesy Repository GmbH - Irish Stock Exchange

Each Senior Lender,

Each Senior Lender, Hedging Bank and the trustees will execute such releases as the Security Agent may reasonably require to give effect to the foregoing. No such release will affect the obligations and liabilities of any other Obligor under the Finance Documents. Subordination of Intercompany Liabilities and Investor Debt Pursuant to the Intercreditor Agreement, the Issuer and certain of its subsidiaries have agreed, prior to the discharge of all liabilities under the Senior Debt, Hedging Debt and Notes Debt and commitments under the Senior Credit Facilities, to subordinate certain intercompany liabilities and investor debt to the Senior Debt and Hedging Debt and also to the claims of other creditors, including the holders of the Notes and the Existing Notes and the trustee. Pursuant to the Indenture, the Trustee has agreed on behalf of itself and the holders of the Notes that it will permit the payment, prepayment, redemption, acquisition or defeasance of any such liabilities, notwithstanding the terms of the Intercreditor Agreement, if such payment, prepayment, redemption, acquisition or defeasance would be in accordance with the terms of the Indenture, including the covenant described under “Description of the Notes—Certain Covenants—Limitation on Restricted Payments.” Turnover If any Hedging Bank, Notes Creditor, Proceeds Creditor or Subordinated Creditor receives or recovers a payment in cash or in kind (including by way of set off or combination of accounts) (i) of any of the Hedging Debt which is prohibited by the Intercreditor Agreement, (ii) of any of the Notes Debt, Proceeds Debt or Subordinated Debt which is prohibited by the Intercreditor Agreement or not made in accordance with the provisions described below under “—Application of proceeds” or (iii) from (or on behalf of) any subsidiary of the Issuer on account of the purchase, redemption or acquisition of any Notes Debt, Proceeds Debt or Subordinated Debt which is prohibited by the Intercreditor Agreement, the receiving or recovering Hedging Bank, Notes Creditor, Proceeds Creditor or Subordinated Creditor (as the case may be) will promptly notify the Security Agent. Each Hedging Bank, Notes Creditor and Subordinated Creditor and the Proceeds Creditor shall hold any amount on trust for the Secured Creditors and, upon demand by the Security Agent, pay that amount to the Security Agent or, if lower, the amount of debt owed to the relevant category of creditor, in each case less the third party costs and expenses (if any) reasonably incurred in receiving or recovering such amount, for application by the Security Agent in accordance with the order of priority described under “—Application of Proceeds.” Application of Proceeds All amounts from time to time received pursuant to the provisions described under “—Turnover” or otherwise or recovered by the Security Agent pursuant to the terms of the Senior Credit Facilities or otherwise or in connection with the realization or enforcement of all or any part of the Security in favor of the Senior Credit Facilities or the Notes will be held by the Security Agent on trust and applied in the following order: • First, in payment pari passu to the trustees of the Notes Trustee Amounts and to the Security Agent of the fees, costs, expenses and liabilities (and all interest thereon as provided in the finance documents) of the Security Agent and any receiver, attorney or agent appointed under the security documents or the Intercreditor Agreement; • Second, in payment pari passu and pro rata of the balance of the costs and expenses of any Senior Creditor or Hedging Bank in connection with such enforcement; • Third, in payment to the Senior Facility Agent for application towards the balance of the Senior Debt and the Hedging Debt pari passu between themselves; • Fourth, in payment of the costs and expenses of any Notes Creditor in connection with such enforcement; • Fifth, in payment to the trustees for application towards the balance of the Notes Debt; and • Sixth, the payment of the surplus (if any) to the Obligor or other person entitled to it. 218

DESCRIPTION OF THE NOTES The Issuer will issue the initial Euro Notes and Dollar Notes under an indenture (the “Indenture”) to be entered into among itself, the Subsidiary Guarantors (as defined below), The Law Debenture Trust Company of New York, as trustee (the “Trustee”), The Bank of New York, as transfer agent, registrar and principal paying agent, AIB/BNY Fund Management (Ireland) Limited, as transfer agent and paying agent, and Citicorp Trustee Company Limited, as security trustee (the “Security Trustee”). The security documents referred to below under “—Security” define the terms of the pledges that will secure the Notes. The terms of the Notes include those expressly set forth in the Indenture. Each of the Euro Notes and the Dollar Notes constitute a separate series of Notes but will be treated as a single class of securities for all purposes under the Indenture, including for the purpose of voting and taking all other actions by Holders of Notes. The Indenture is unlimited in aggregate principal amount, but the issuance, in the initial offering, of Euro Notes is limited to €235.0 million and the issuance of Dollar Notes is limited to $151.0 million. We may issue an unlimited principal amount of additional Notes having identical terms and conditions as any series of the Notes (the “Additional Notes”); provided that any Additional Notes will be fungible with the Notes for U.S. federal income tax purposes. We will only be permitted to issue Additional Notes in compliance with the covenant restricting the incurrence of indebtedness contained in the Indenture (as described below under “—Certain Covenants—Limitation on Indebtedness”). The Notes issued in the initial offering and, if issued, any Additional Notes will be treated as a single class for all purposes under the Indenture, including with respect to waivers and amendments, except as otherwise specified with respect to each series of Notes. Unless the context otherwise requires, in this “Description of the Notes,” references to the “Notes” include the Euro Notes, Dollar Notes and any Additional Notes. This “Description of the Notes” is intended to be an overview of the material provisions of the Notes, the Indenture and the Security Documents (as defined below). Since this description of the terms of the Notes is only a summary, you should refer to the Indenture and the Security Documents for complete descriptions of the obligations of the Issuer and the Subsidiary Guarantors, and your rights. Copies of the Indenture and the Security Documents are available as set forth under “Where You Can Find Other Information.” You will find definitions of certain capitalized terms used in this “Description of the Notes” under the subheading “— Certain Definitions.” For purposes of this “Description of the Notes,” references to (i) “the Issuer,” “we,” “our” and “us” refer only to iesy Repository GmbH and not to its Subsidiaries unless otherwise specified, (ii) “iesy Hessen” refers to iesy Hessen GmbH & Co. KG, (iii) “New iesy” refers to New iesy GmbH, (iv) “iesy GP” refers to iesy Hessen Finanz- Management GmbH, (v) “iesy Services” refers to iesy Services GmbH, (vi) “Kabelnetz” refers to Kabelnetz NRW Holdco GmbH, (vii) “Kabelnetz GmbH” refers to Kabelnetz NRW Verwaltungs GmbH, (viii) “Kabelnetz KG” refers to Kabelnetz NRW GmbH & Co. KG, (ix) “ish GmbH” refers to ish Verwaltungs GmbH, (x) “ish KG” refers to ish GmbH & Co. KG and (xi) “ish KS” refers to ish KS NRW Beteiligungs-GmbH. General The Notes will, upon issuance: • be general, senior secured obligations of the Issuer; • be guaranteed on a senior subordinated basis by the Subsidiary Guarantors (as described under “—Ranking and Subsidiary Guarantees”); • have the benefit of security in the form of a pledge of the Capital Stock in New iesy, iesy Hessen and iesy GP (which will be second-ranking pursuant to the Intercreditor Agreement), a second-ranking pledge of the intercompany loan to be made by the Issuer to iesy Hessen with proceeds from the issuance of the Notes (each, as described below under “—Security”) and a pledge of the intercompany loan made between the Issuer and iesy Hessen with the proceeds from the issuance of the Existing Notes (which will be second-ranking pursuant to the Intercreditor Agreement); • be senior in right of payment to any existing and future Subordinated Indebtedness of the Issuer; • rank equally in right of payment with any existing and future Senior Indebtedness of the Issuer; • be effectively subordinated to any existing and future secured Indebtedness of the Issuer and its Subsidiaries to the extent of the value of the assets securing such Indebtedness (unless such assets also secure the Notes on an equal and ratable or prior basis); 219

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    PROSPECTUS iesy Repository GmbH €

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    the market price of the Notes at a

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    which the issue or the offer of sec

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    “combined entity”, and “we”

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    “Tele Columbus” refers to the c

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    Revenue generating units, or “RGU

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    end of 2005. Our subscribers can al

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    populations, with approximately 2.7

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    In April/May 2005, iesy entered int

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    Our Corporate and Financing Structu

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    THE OFFERING The summary below desc

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    Optional Redemption We may redeem a

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    iesy Other Financial Data (unaudite

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    iesy Operational Data (unaudited) R

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    ish Income Statement Data Audited y

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    35 Three months ended Year ended De

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    37 As of December 31, As of March 3

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    RISK FACTORS You should carefully c

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    acquiring content, purchasing servi

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    agreements—MSG”). We cannot ass

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    In addition, most of our cable netw

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    Strikes or other industrial actions

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    acquisitions. In addition, any addi

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    provision and may not be abusive. S

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    €1,050.0 million would have been

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    We depend on payments from our subs

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    • Claims against the Issuer and s

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    Senior Credit Facilities before the

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    court rulings did not address the p

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    THE ISH ACQUISITION The description

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    In addition to the warranties, spec

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    CAPITALIZATION The following table

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    Unaudited Pro Forma Condensed Conso

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    (€m, except percentages) Pro form

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    Income Statement Data 75 Audited Ye

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    (7) Number of subscribers at the en

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    • iesy’s premium cable televisi

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    egulated pricing model. Fees are pa

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    Risks Relating to Our Indebtedness

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    Legal, Consulting and Management Fe

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    Subscribers iesy classifies its cus

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    2003 to €8.20 per subscriber in t

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    • the senior credit facilities we

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    average installation fees from July

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    Cash flow from investing activities

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    In the three months ended March 31,

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    eview and optimization of services

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    Cash Flow from Operating Activities

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    oadcasters in television and radio.

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    educed or increased by a material a

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    Income Statement Data Audited year

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    109 As of December 31, As of March

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    • ish’s premium cable televisio

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    In addition, ish markets pay-per-vi

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    Cost of Materials and Services Cost

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    For accounting purposes, ish treats

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    Subscribers ish classifies its cust

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    Competition ish faces significant c

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    This decrease was primarily due to

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    Net Loss Net loss was €17.9 milli

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    Pension Obligations As of March 31,

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    Term Sheets with DTAG, BRN-ish agre

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    estructuring liabilities, while 200

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    accrual for pending losses. The exp

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    International Financial Reporting S

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    Content Providers Basic Television

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    Digital Home” and PrimaCom offers

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    [GRAPHIC] [GRAPHIC] Level 4 is the

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    shared access basis. In this case,

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    The following table shows several k

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    In the domestic market, the German

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    BUSINESS Unless otherwise indicated

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    Germany, with approximately 30.2 mi

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    Prudently deploying capital. Our de

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    iesy’s Current Basic Cable Televi

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    amounted to €8.0 million or 5.9%

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    within iesy’s upgraded areas and

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    Supply The following chart shows th

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    Term Sheet Service Duration Offer o

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    y the new fiber system. See “Oper

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  • Page 171 and 172: ish’s Current Basic Cable Televis
  • Page 173 and 174: In addition to the monthly subscrip
  • Page 175 and 176: Customers who subscribe to Premiere
  • Page 177 and 178: Sales ish’s sales team is divided
  • Page 179 and 180: The following chart illustrates ish
  • Page 181 and 182: Term Sheet Service Duration Co-use
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  • Page 185 and 186: Other Significant Supply Agreements
  • Page 187 and 188: ights themselves. As an exception,
  • Page 189 and 190: Competition The cable television an
  • Page 191 and 192: Introduction REGULATION German law
  • Page 193 and 194: We assume that we will be deemed to
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  • Page 203 and 204: Gerard Tyler is ish’s Treasurer.
  • Page 207 and 208: Beneficial Ownership The following
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  • Page 223 and 224: Issuer have agreed that iesy Hessen
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  • Page 229 and 230: provisions described under “—De
  • Page 231 and 232: In addition, the Intercreditor Agre
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  • Page 249 and 250: (1) the assumption by the transfere
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  • Page 255 and 256: contemporaneously with any such act
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  • Page 259 and 260: (2) provide for the assumption by a
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  • Page 265 and 266: “Bank Indebtedness” means any a
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    (9) the impact of capitalized inter

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    “Exchange Act” means the U.S. S

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    (iii) for the avoidance of doubt, a

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    “Nationally Recognized Statistica

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    (2) Investments in another Person i

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    (15) Permitted Collateral Liens; (1

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    (5) in the case of Apollo and Golde

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    service level agreement as replaced

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    “Unrestricted Subsidiary” means

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    The Issuer and the Trustee and thei

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    Secondary Market Trading The Book-E

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    to trade tax. The taxable gain from

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    date). A U.S. Holder’s adjusted t

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    (c) for so long as the Notes are el

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    LEGAL MATTERS Certain legal matters

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    Assets iesy Hessen GmbH & Co. KG, W

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    I. Application of Legal Provisions

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    III. Explanation of Balance Sheet a

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    Last year’s extraordinary expense

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    iesy Repository GmbH, Hamburg AMEND

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    and remaining useful life for the i

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    The movements in consolidated equit

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    iesy Repository GmbH, Hamburg AMEND

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    Assets iesy Repository GmbH, Hambur

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    I. Basis of Presentation The consol

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    V. Explanations to Material Items o

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    Network infrastructure, rental, lea

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    iesy Repository GmbH, Hamburg UNAUD

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    1. Basis of Presentation iesy Repos

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    5. Explanations to Material Items o

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    Shareholdings of iesy Repository Gm

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    iesy Hessen GmbH & Co. KG, Weiterst

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    (3) Accounting and Valuation Princi

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    The following auditors’ report (B

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    Depreciation and Amortization COURT

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    Cost of materials COURTESY TRANSLAT

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    Goodwill. Under German GAAP, the di

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    Under U.S. GAAP, loan origination f

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    IFRS requires a purchase price allo

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    financial liability incurred result

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    €235,000,000 10 1 /8% Senior Note

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