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iesy Repository GmbH - Irish Stock Exchange

iesy Repository GmbH - Irish Stock Exchange

Please see the section

Please see the section entitled “Description of Other Indebtedness—Intercreditor Agreement.” In addition, pursuant to Additional Intercreditor Agreements entered into after the Closing Date, the Collateral may be pledged to secure other Indebtedness. See “—Certain Covenants—Impairment of Security Interest.” Share Pledges Under the Share Pledges, the Issuer will pledge on a third-priority basis the Capital Stock in New iesy, New iesy and the Issuer will pledge the Capital Stock in iesy Hessen, and each of the Issuer and New iesy will pledge the Capital Stock in iesy GP, in each case to secure the payment and performance when due of the Issuer’s obligations under the Notes and the Indenture. Such Share Pledges have also been granted to secure the payment and performance when due of the Issuer’s obligations under the Existing Notes and the indenture governing the Existing Notes, and the beneficiaries of such Share Pledges in respect of the Notes and the Existing Notes will agree to benefit equally from such Share Pledges on a secondpriority basis. See “Description of Other Indebtedness—Intercreditor Agreement” and “Risk Factors—Risks Relating to the Notes, the Subsidiary Guarantees and the Security—You may not be able to enforce, or recover any amounts due under, the Subsidiary Guarantees or the Security due to subordination provisions, restrictions on enforcement and resales.” The Capital Stock of New iesy, iesy Hessen and iesy GP will have been pledged by the Issuer and New iesy to secure on a first-priority basis obligations under the Senior Credit Facilities. The Share Pledges will be entered into among, inter alia, the Issuer, New iesy, iesy GP, the Trustee and the Security Trustee under share pledge agreements. On the basis of German law restrictions relating to security interests in the form of pledges, the Share Pledges will secure a debt obligation owed to the Security Trustee as a joint and several creditor under the Notes. See “Risk Factors— Risks Relating to the Notes, the Subsidiary Guarantees and the Security—It is possible that the Security may not be enforceable.” When entering into the Share Pledges, the Security Trustee acts in its own name, but for the benefit of the Holders from time to time. Under the Intercreditor Agreement, the Security Trustee will also act on behalf of the lenders under the Senior Credit Facilities in relation to the security interest in favor of such lenders. The Indenture will provide that, subject to the terms thereof, the Notes and the Indenture will be secured by a secondpriority security interest in the Collateral until all obligations under the Notes and the Indenture have been discharged. Such rankings will be established pursuant to the Intercreditor Agreement. However, please see the section entitled “Risk Factors—Risks Relating to the Notes, the Subsidiary Guarantees and the Security—You may not be able to enforce, or recover any amounts under, the Subsidiary Guarantees or the Security due to subordination provisions, restrictions on enforcement and releases.” Each Share Pledge is governed by German law and provides that the rights under such Share Pledge must be exercised by the Security Trustee. Since the Holders are not parties to the Share Pledges, Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Share Pledges. The Holders may only act by instructing the Trustee to act through the Security Trustee. Our German counsel has advised us that there is some uncertainty under German law (i) as to whether obligations owing to beneficial owners of the Notes that are not identified as registered holders in the Share Pledges will be validly secured and (ii) as to the validity of any security interest created in favor of the Security Trustee to secure the obligations represented by a joint and several creditor obligation. Also, under German law, in the event that the Issuer or New iesy enters into insolvency proceedings, the security interests created under the Share Pledges or the joint and several creditor obligation could be subject to potential challenges by an insolvency administrator (Insolvenzverwalter) under German rules regarding avoidance of transactions (Insolvenzordnung). Outside of insolvency proceedings, third-party creditors of the Issuer or New iesy may in certain circumstances have an avoidance right under the German Code on Avoidance (Anfechtungsgesetz). If any challenge to the validity of the security interests is successful, the Holders may not be able to recover any amounts under the Share Pledges. Please see the section entitled “Risk Factors—Risks Relating to the Notes, the Subsidiary Guarantees and the Security.” The Share Pledges will be released (a) so long as there is no Default outstanding under the Indenture or a default outstanding under any other Indebtedness secured by the Collateral, (i) in the event that and for so long as all holders of Senior Indebtedness (including the lenders under the Senior Credit Facilities) have released their lien on the Collateral or (ii) if the Restricted Subsidiary whose Capital Stock is the subject of such Share Pledge is redesignated as an Unrestricted Subsidiary in accordance with the Indenture or (b) following a Default under the Indenture or a default under any other Indebtedness secured by the Collateral, pursuant to an Enforcement Sale. See “Description of Other Indebtedness— Intercreditor Agreement—Limitations on enforcement.” In addition, the Share Pledges will be released in accordance with the Intercreditor Agreement. The Security Trustee and the Trustee will agree to any release of the Share Pledges that is in accordance with the Indenture and the Intercreditor Agreement without requiring any Holder consent. 230

In addition, the Intercreditor Agreement provides that if Indebtedness under the Senior Credit Facilities is refinanced or replaced in accordance with the Intercreditor Agreement (and the security agent under the Senior Credit Facilities has released the Lien securing that Indebtedness) and, in order to secure the new Senior Debt on a first-ranking basis (where such Lien is permitted by the Indenture), on the date on which such refinancing or replacement occurs, the Security Trustee is authorized by the Trustee to release (and the Security Trustee will release) the Lien on the Collateral and will, immediately after such Liens are granted in respect of the new Senior Debt, re-take the Security Interest; provided that (A) the Issuer shall provide to the Trustee an opinion of counsel satisfactory to the Trustee regarding the validity and enforceability of any Liens to secure the Notes or the Subsidiary Guarantees that are re-taken in accordance with the terms of this paragraph and (B) the release and re-taking of any Lien on the Collateral in accordance with the terms of this paragraph shall only be undertaken to the extent necessary under applicable law to ensure that the new security interests securing the new Senior Debt rank ahead of the Liens securing the Notes and the Subsidiary Guarantees. Proceeds Loan Pledge The obligations under the Notes and the Indenture also will be secured by a security interest in the Issuer’s rights under the Proceeds Loan. The Proceeds Loan Pledge will be granted in favor of the Security Trustee on a second-priority basis and will be subject to the Intercreditor Agreement. The Issuer also will pledge its rights under the Proceeds Loan to secure obligations under the Senior Credit Facilities on a first-priority basis. The Proceeds Loan will also be pledged on a secondpriority basis for the benefit of the holders of the Existing Notes and the beneficiaries of such Proceeds Loan Pledge in respect of the Notes and the Existing Notes will benefit equally in respect of such Proceeds Loan Pledge. Additionally, the proceeds loan relating to the Existing Notes will be pledged on a third-priority basis for the benefit of the Holders of the Notes and the beneficiaries of such pledge in respect of the Notes and the beneficiaries of the existing proceeds loan pledge in respect of the Existing Notes will agree to benefit equally in respect of such pledge on a second-priority basis (on a contractual basis but not in rem (nicht mit dinglicher Wirkung)). The pledge of the Existing Proceeds Loan will have the same terms as the Proceeds Loan Pledge. See “Description of Other Indebtedness—Proceeds Loans” and “—Intercreditor Agreement” and “Risk Factors—You may not be able to enforce, or recover any amounts under, the Subsidiary Guarantees or the Security due to subordination provisions, restrictions on enforcement and releases.” The Proceeds Loan Pledge will be governed by German law and will be subject to the same uncertainty as to perfection and validity of the security interest created thereunder as exists with respect to the Share Pledges, as described in the fifth paragraph of the immediately preceding subsection entitled “—Share Pledges.” To the extent we use the proceeds from the issuance of the Notes to make a distribution to the Issuer’s shareholders, iesy Hessen will repay the Proceeds Loan. The Proceeds Loan Pledge shall be released upon the full repayment and cancellation of the Proceeds Loan. In the event that the lenders under the Senior Credit Facilities enforce their first-priority security interest with respect to the Proceeds Loan Agreement (or another holder of Indebtedness which is secured by a security interest in such Proceeds Loan Agreement enforces such security interest), the Issuer’s rights under the Proceeds Loan Agreement may be assigned to a third party. This would mean that the Issuer would have no right, title or interest in the Loan Collateral and no claims against iesy Hessen under the Proceeds Loan Agreement. In the event that Additional Notes are issued, an Additional Proceeds Loan may be made and such Additional Proceeds Loan will be pledged to the Security Trustee on the same terms as the Proceeds Loan. Enforcement of Security Interest The Indenture and the Intercreditor Agreement restrict the ability of the Holders or the Trustee to instruct the Security Trustee to enforce the Security Interest and provide for the release of the Security Interest in certain circumstances upon enforcement by the lenders under the Senior Credit Facilities. These limitations are described under “Description of Other Indebtedness—Intercreditor Agreement.” In general, the rights of the Security Trustee (acting on its own behalf or on behalf of the Holders) to take enforcement action under the Security Documents with respect to the Collateral are subject to certain standstill provisions similar to those that apply to the Subsidiary Guarantees and other limitations on enforcement. The Security Trustee is also limited from taking enforcement actions that would otherwise be permitted under the Intercreditor Agreement with respect to the Collateral if the security agent under the Senior Credit Facilities has given notice to the Security Trustee and to the Trustee that it is enforcing the Security Interest over the Collateral. Until the security agent for the Senior Credit Facilities ceases to use all reasonable commercial efforts to enforce the security interest in favor of the lenders under the Senior Credit Facilities as expeditiously as reasonably practicable having regard for the circumstances (and the security agent for the Senior Credit Facilities will give prompt notice to the Security Trustee and to the Trustee of its ceasing so to enforce): (a) the Security Trustee may not enforce the Security Interest in a manner that would adversely affect the enforcement process instituted by 231

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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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    CURRENCY PRESENTATION AND EXCHANGE

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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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    SUMMARY FINANCIAL AND OPERATING INF

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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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    NOTES TO THE UNAUDITED PRO FORMA CO

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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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    part of settling arbitration procee

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    Business of ish Products and Servic

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    ish’s Current Basic Cable Televis

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    In addition to the monthly subscrip

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    Customers who subscribe to Premiere

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    Sales ish’s sales team is divided

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  • Page 181 and 182: Term Sheet Service Duration Co-use
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  • Page 185 and 186: Other Significant Supply Agreements
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  • Page 189 and 190: Competition The cable television an
  • Page 191 and 192: Introduction REGULATION German law
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  • Page 203 and 204: Gerard Tyler is ish’s Treasurer.
  • Page 205 and 206: CERTAIN RELATIONSHIPS AND RELATED P
  • 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: provisions described under “—De
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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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  • Page 269 and 270: (9) the impact of capitalized inter
  • Page 271 and 272: “Exchange Act” means the U.S. S
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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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    PLAN OF DISTRIBUTION We, the Subsid

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    LEGAL MATTERS Certain legal matters

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    WHERE YOU CAN FIND OTHER INFORMATIO

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    Listing LISTING AND GENERAL INFORMA

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    INDEX TO FINANCIAL STATEMENTS iesy

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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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    INDEPENDENT AUDITORS’ REPORT We h

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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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    COURTESY TRANSLATION FROM THE GERMA

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    COURTESY TRANSLATION FROM THE GERMA

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    (1) General COURTESY TRANSLATION FR

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    (3) Accounting and Valuation Princi

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    COURTESY TRANSLATION FROM THE GERMA

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    COURTESY TRANSLATION FROM THE GERMA

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    COURTESY TRANSLATION FROM THE GERMA

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    The following auditors’ report (B

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    COURTESY TRANSLATION FROM THE GERMA

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    COURTESY TRANSLATION FROM THE GERMA

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    COURTESY TRANSLATION FROM THE GERMA

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    Inventories COURTESY TRANSLATION FR

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    Goodwill COURTESY TRANSLATION FROM

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    COURTESY TRANSLATION FROM THE GERMA

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    Depreciation and Amortization COURT

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    COURTESY TRANSLATION FROM THE GERMA

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    COURTESY TRANSLATION FROM THE GERMA

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    COURTESY TRANSLATION FROM THE GERMA

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    (1) General COURTESY TRANSLATION FR

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    COURTESY TRANSLATION FROM THE GERMA

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    COURTESY TRANSLATION FROM THE GERMA

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    COURTESY TRANSLATION FROM THE GERMA

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    Cost of materials COURTESY TRANSLAT

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    [THIS PAGE INTENTIONALLY LEFT BLANK

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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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