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iesy Repository GmbH - Irish Stock Exchange

iesy Repository GmbH - Irish Stock Exchange

We are subject to

We are subject to significant restrictive debt covenants, which limit our operating flexibility. The Senior Credit Facilities and the indentures for the Notes and the Existing Notes contain (or will contain) covenants that significantly restrict our ability to, among other things: • incur additional indebtedness; • pay dividends or make other distributions; • make certain other restricted payments and investments; • create liens; • issue shares of subsidiaries; • impose restrictions on the ability of our subsidiaries to pay dividends or make other payments to us; • repurchase shares; • transfer or sell assets; • merge or consolidate with other entities; • enter into transactions with affiliates; • impair the Security; and • engage in certain types of business. These covenants could limit our ability to finance our future operations and capital needs and our ability to pursue acquisitions and other business activities that may be in our interest. The Senior Credit Facilities also require us to maintain specified financial ratios and satisfy specified financial tests. Our ability to meet these financial ratios and tests may be affected by events beyond our control and, as a result, we cannot assure you that we will be able to meet these ratios and tests. In the event of a default under the Senior Credit Facilities or certain other defaults under other agreements, the lenders could terminate their commitments under the Senior Credit Facilities and declare all amounts owed to them to be due and payable. Borrowings under other debt instruments that contain cross-default or cross-acceleration provisions, including the Notes, may, as a result, also be accelerated and become due and payable. We may be unable to pay these debts in such circumstances. Under German insolvency law we may have to file for insolvency when we are over indebted, even if we are still able to meet all payment obligations. Under German law, a reason for the commencement of insolvency proceedings (Insolvenzgrund) would not only exist in case of illiquidity (Zahlungsunfähigkeit) or imminent illiquidity (drohende Zahlungsunfähigkeit) of the Issuer, but also in case of its over indebtedness (Überschuldung). Over indebtedness is based solely on a balance sheet test (measured by fair market or liquidation values rather than by book values) and exists when the debtor’s assets no longer cover existing liabilities. Hence, over indebtedness may occur if the debtor has still enough liquidity to meet its current obligations. Once the over indebtedness has occurred, the management is under an obligation to file for insolvency within three weeks unless the over indebtedness is remedied by equity contributions or subordination of liability. Delayed filing for insolvency is a criminal offense for the management. Unforeseen adverse events resulting in losses or write-offs or requiring reserves may trigger over indebtedness and commencement of insolvency proceedings of any of the Issuer or the Subsidiary Guarantors if their respective net equity at that time is not sufficient to offset such losses, write-offs or reserves. See “—We depend on payments from our subsidiaries to make payments on the Notes, and our subsidiaries will be subject to various restrictions on making such payments.” If iesy Hessen becomes insolvent, New iesy and the Issuer, as limited partners, would be subordinated to all other creditors of iesy Hessen. 54

We depend on payments from our subsidiaries to make payments on the Notes, and our subsidiaries will be subject to various restrictions on making such payments. The Issuer’s main activity is the holding of equity interests in New iesy, which in turn holds equity interests in iesy Hessen. iesy Hessen holds the equity interests of Kabelnetz, which itself is a holding company for the ish entities. The Issuer holds no material assets and has no sources of revenue other than the equity interests in its subsidiaries, the right to any dividends thereon and the Proceeds Loans. The Issuer and New iesy also are required to pay salaries and other amounts due to certain members of iesy’s management and certain other expenses, including management and advisory fees. In addition, New iesy, iesy Hessen and the ish entities are subject to corporate law restrictions on their ability to pay dividends. In particular, under sections 30 and 31 of the German Limited Liability Companies Act (Gesetz über die Gesellschaften mit beschränkter Haftung) (with respect to German limited liability companies) and sections 172 and 172a of the German Commercial Code (Handelsgesetzbuch), in conjunction with sections 30 and 31 of the German Limited Liability Companies Act (with respect to German limited partnerships whose general partner is a limited liability company), such entities must not make an upstream payment to any of their direct or indirect shareholders to the extent that such payment would result in the net equity of the limited liability company making the payment or, in the case of iesy Hessen, the net equity of its general partner (iesy GP) becoming negative. A limited liability company’s net equity is calculated upon the book value of its assets (excluding, however, any loan repayment claims relating to upstream or cross-stream intercompany loans granted by that company) minus its liabilities (including any provisions (Rückstellungen) such as, for example, any provisions made or to be made by iesy GP in respect of its liability as a general partner to the creditors of iesy Hessen) minus the company’s stated capital. Management would be personally liable vis-à-vis the relevant company to repay to it any amounts paid to the company’s shareholders resulting in the company’s net equity becoming negative. The German capital maintenance rules described above continue to be subject to evolving court decision practice. In particular, German courts have recently held that shareholders of a German limited liability company (such as New iesy), in addition to being bound by the restrictions set forth in sections 30 and 31 of the German Limited Liability Companies Act, must not deprive the company of the assets required by it to meet its own payment obligations. This court ruling could be extended to limited partnerships such as iesy Hessen as well. As of March 31, 2005, iesy Hessen had net equity of €244.5 million and New iesy had net equity of €112.7 million and ish had net equity of €174.6 million. iesy Hessen’s net equity may be decreased by dividends and distributions from iesy Hessen and by losses at iesy Hessen. As iesy Hessen’s general partner, iesy GP’s net equity would be affected by provisions (Rückstellungen) required due to its potential liability for iesy Hessen’s debt if iesy Hessen were to become unable to meet its obligations, e.g., due to losses or excessive prior distributions to shareholders. New iesy’s net equity may be decreased by dividends and distributions and by losses, in particular by book losses in connection with any write-down of the value with which New iesy carries its interest in iesy Hessen on its books. ish’s net equity may be affected by a reorganization of the ish entities and may be decreased by any dividends, distributions and losses. Moreover, if the Issuer enters into a profit and loss pooling agreement with New iesy (see “—Risks Relating to Our Business—We may be unable to deduct interest on the Notes for tax purposes”), the Issuer will be obliged to effectively compensate New iesy for any annual losses (including any losses caused by the write-down of assets on the balance sheet of New iesy) which it may incur during the term of the profit and loss pooling agreement. Such obligation to compensate may therefore further reduce distributable profits available at New iesy and may lead to a reduction of any intercompany claims which the Issuer may have against New iesy. The Issuer may become insolvent if it must effectively compensate New iesy for annual losses in the absence of any further distributable reserves at, and intercompany claims against, New iesy. While we do not believe that iesy Hessen or New iesy will have negative net equity, we expect the net equity position of both entities to decrease over the next several years. In addition, any losses in the future may further reduce the net equity position of iesy Hessen or New iesy and may result in negative net equity of one or both of iesy Hessen or New iesy. There can be no assurance that the dividend and distribution capacity of New iesy, iesy Hessen and the ish entities will be adequate to service scheduled payments of interest and principal on the Notes, particularly as iesy and ish have histories of losses. In addition, the terms of the Notes permit further debt to be incurred by the Issuer, and New iesy, iesy Hessen and the ish entities will also be required to service this debt by means of dividends or other distributions which are subject to the same restrictions. If payments are not made by our subsidiaries to the Issuer, for whatever reason, it may not have any other sources of funds available to it that would permit it to make payments on the Notes or satisfy other payment obligations, including with respect to any tax liabilities. In such event, holders of the Notes would have to rely upon claims for payment under the Subsidiary Guarantees, which are subject to the risks and limitations described below under “—Risks Relating to the Notes, the Subsidiary Guarantees and the Security.” 55

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    PROSPECTUS iesy Repository GmbH €

  • Page 3 and 4: the market price of the Notes at a
  • Page 5 and 6: which the issue or the offer of sec
  • Page 7 and 8: “combined entity”, and “we”
  • Page 9 and 10: “Tele Columbus” refers to the c
  • Page 11 and 12: Revenue generating units, or “RGU
  • Page 13 and 14: CURRENCY PRESENTATION AND EXCHANGE
  • Page 15 and 16: end of 2005. Our subscribers can al
  • Page 17 and 18: populations, with approximately 2.7
  • Page 19 and 20: In April/May 2005, iesy entered int
  • Page 21 and 22: Our Corporate and Financing Structu
  • Page 23 and 24: THE OFFERING The summary below desc
  • Page 25 and 26: Optional Redemption We may redeem a
  • Page 27 and 28: SUMMARY FINANCIAL AND OPERATING INF
  • Page 29 and 30: iesy Other Financial Data (unaudite
  • Page 31 and 32: iesy Operational Data (unaudited) R
  • Page 33 and 34: ish Income Statement Data Audited y
  • Page 35 and 36: 35 Three months ended Year ended De
  • Page 37 and 38: 37 As of December 31, As of March 3
  • Page 39 and 40: RISK FACTORS You should carefully c
  • Page 41 and 42: acquiring content, purchasing servi
  • Page 43 and 44: agreements—MSG”). We cannot ass
  • Page 45 and 46: In addition, most of our cable netw
  • Page 47 and 48: Strikes or other industrial actions
  • Page 49 and 50: acquisitions. In addition, any addi
  • Page 51 and 52: provision and may not be abusive. S
  • Page 53: €1,050.0 million would have been
  • Page 57 and 58: • Claims against the Issuer and s
  • Page 59 and 60: Senior Credit Facilities before the
  • Page 61 and 62: court rulings did not address the p
  • Page 63 and 64: THE ISH ACQUISITION The description
  • Page 65 and 66: In addition to the warranties, spec
  • Page 67 and 68: CAPITALIZATION The following table
  • Page 69 and 70: Unaudited Pro Forma Condensed Conso
  • Page 71 and 72: NOTES TO THE UNAUDITED PRO FORMA CO
  • Page 73 and 74: (€m, except percentages) Pro form
  • Page 75 and 76: Income Statement Data 75 Audited Ye
  • Page 77 and 78: (7) Number of subscribers at the en
  • Page 79 and 80: • iesy’s premium cable televisi
  • Page 81 and 82: egulated pricing model. Fees are pa
  • Page 83 and 84: Risks Relating to Our Indebtedness
  • Page 85 and 86: Legal, Consulting and Management Fe
  • Page 87 and 88: Subscribers iesy classifies its cus
  • Page 89 and 90: 2003 to €8.20 per subscriber in t
  • Page 91 and 92: • the senior credit facilities we
  • Page 93 and 94: average installation fees from July
  • Page 95 and 96: Cash flow from investing activities
  • Page 97 and 98: In the three months ended March 31,
  • Page 99 and 100: eview and optimization of services
  • Page 101 and 102: Cash Flow from Operating Activities
  • Page 103 and 104: 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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    The following chart illustrates ish

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    Term Sheet Service Duration Co-use

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    Lease of space for broadband cable

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    Other Significant Supply Agreements

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    ights themselves. As an exception,

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    Competition The cable television an

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    Introduction REGULATION German law

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    We assume that we will be deemed to

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    The Amendment provides that provisi

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    • Providers who had a dominant po

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    in the Munich office of Apax Partne

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    Marketing for Germany and Austria,

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    Gerard Tyler is ish’s Treasurer.

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    CERTAIN RELATIONSHIPS AND RELATED P

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    Beneficial Ownership The following

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    DESCRIPTION OF OTHER INDEBTEDNESS T

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    period (unless the interest period

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    Subordinated Bridge Facility In con

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    • the ability of the Obligors (ot

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    owed by the Insolvent Obligor will

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    DESCRIPTION OF THE NOTES The Issuer

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    in London, the Bank of New York, Ne

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    Issuer have agreed that iesy Hessen

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    Subsidiary Guarantor outstanding wh

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    the amount of their secured claim.

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    provisions described under “—De

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    In addition, the Intercreditor Agre

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    Euro Note to and including February

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    circumstances referred to above exi

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    that it has unconditionally exercis

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    time outstanding not exceeding (i)

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    description of this covenant and no

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    Date of any Indebtedness that has b

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    (13) Investments in an aggregate am

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    supplement or other modification) t

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    (1) the assumption by the transfere

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    Reports Whether or not required by

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    of the European Union on January 1,

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    contemporaneously with any such act

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    25% in principal amount of the outs

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    (2) provide for the assumption by a

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    (6) an Officer’s Certificate stat

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    calculated based on the relevant cu

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    “Bank Indebtedness” means any a

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    Consolidated Net Income (excluding

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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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    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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