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iesy Repository GmbH - Irish Stock Exchange

iesy Repository GmbH - Irish Stock Exchange

Other than pursuant to

Other than pursuant to the Proceeds Loans, the Issuer currently only has a shareholder’s claim in the assets of its subsidiaries. This shareholder’s claim is junior to the claims that creditors or preferred stockholders of its subsidiaries have against such subsidiaries. Holders of the Notes will only be senior subordinated creditors of the Subsidiary Guarantors and will not be creditors of subsidiaries of the Issuer that are not Subsidiary Guarantors of the Notes. As a result, if the Issuer has insufficient cash available to service its debt obligations, holders of the Notes will have limited recourse as compared to certain other creditors of the Issuer’s subsidiaries, including lenders under the Senior Credit Facilities. See “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,” “—Risks Relating to the Notes, the Subsidiary Guarantees and the Security—The Issuer may not be able to recover any amounts under the Proceeds Loans because the Issuer’s right to receive payments under the Proceeds Loans is contractually and legally subordinated to other liabilities of iesy Hessen” and “Description of the Notes—Ranking and Subsidiary Guarantees.” We will be exposed to foreign exchange risks that may adversely affect our financial condition and results of operations. Because substantially all our revenues are denominated in euro, we will be exposed to foreign exchange risks by issuing and selling Dollar Notes or by incurring other debt in the future that is not denominated in euro. These risks could lead to increased cash requirements for debt service, higher leverage levels, greater levels of risk in relation to repaying or refinancing such debt when due, and significant costs (including tax costs) incurred in order to hedge these risks. We intend to swap our obligations under the Dollar Notes into euro so that our interest payments can be made in euro, ensuring that we do not subject ourselves to foreign currency exchange risk. A material decrease in the fair value of our business might result in the insolvency of New iesy or the Issuer. The Issuer’s principal activity is the direct and indirect holding of partnership interests in iesy’s operating company, iesy Hessen. New iesy’s principal activity is the holding of its partnership interests in iesy Hessen. Either or both of the Issuer and New iesy may be deemed to have become over indebted and would be subjected to insolvency proceedings in Germany if the fair values of their respective direct or indirect investments in iesy Hessen are less than the amounts of indebtedness shown on their respective balance sheets. Such condition could arise, for example, as a result of lower net earnings of iesy Hessen than currently anticipated by iesy or if iesy is unable to reduce its net debt as currently anticipated. The value of the investment in iesy Hessen will also be affected by the operating performance of ish. Risks Relating to the Notes, the Subsidiary Guarantees and the Security German insolvency laws may preclude the recovery of payments due under the Notes. Any insolvency proceedings with regard to the Issuer and the Subsidiary Guarantors would most likely be based on and governed by the insolvency laws of Germany, the jurisdiction under which the Issuer and the Subsidiary Guarantors are organized and in which all of their assets are located. The provisions of such insolvency laws differ substantially from U.S. bankruptcy laws and may in many instances be less favorable to holders of the Notes than comparable provisions of U.S. law. Under German insolvency law, insolvency proceedings will be opened following application to the insolvency court if certain requirements are fulfilled. Only the management is entitled to file for insolvency in the case of imminent illiquidity. In the case of illiquidity or over indebtedness, the application can be made by any creditor or the management of the respective company. In any of the two latter cases, the management of the Issuer or a Subsidiary Guarantor is obligated to file a petition for the commencement of insolvency proceedings with the competent insolvency court without undue delay, but in no event later than three weeks after the insolvency event occurred. Upon receipt of such petition, the insolvency court would initiate temporary insolvency proceedings. During these temporary insolvency proceedings, the insolvency court is likely to impose a stay on any execution levied upon the assets of the Issuer or any Subsidiary Guarantor. Once it is established that the Issuer or any Subsidiary Guarantor is insolvent, i.e. imminently illiquid, illiquid or over indebted, but holds sufficient (unencumbered) assets to at least cover the costs of the insolvency process, formal insolvency proceedings would be opened by court order. The most important consequences of such opening of formal insolvency proceedings for the holders of the Notes would be the following: • The right to administer and dispose of assets of the Issuer or such Subsidiary Guarantor would generally pass to the insolvency administrator (Insolvenzverwalter) as sole representative of the insolvency estate. • Disposals effected by management of the Issuer or such Subsidiary Guarantor after the opening of formal insolvency proceedings are null and void by operation of law. 56

• Claims against the Issuer and such Subsidiary Guarantor may only be pursued in accordance with the rules set forth in the German Insolvency Code (Insolvenzordnung). In an insolvency proceeding over the assets of the Issuer or any Subsidiary Guarantor, the claims arising from the Notes or the applicable Subsidiary Guarantee would rank as (non-preferred) insolvency claims (Insolvenzforderungen) that have to be filed with the insolvency administrator. If the insolvency administrator is convinced that the lodged claims constitute a valid and enforceable payment obligation of the debtor, he would acknowledge such claim which is then entitled to receive a dividend quota (if any) at a later stage. Insolvency claims only receive a dividend quota after all claims for preferential satisfaction based on security interests (Absonderungsrechte) and preferred claims (Masseforderungen) against the insolvency estate have been settled and satisfied in full. In addition, the effective distribution of monies among the holders of insolvency claims, if any, regularly only occurs when the insolvency process is terminated which may, depending on the size and complexity of the case, take up to several years. As a general principle, the claims arising from a Subsidiary Guarantee may be enforced against a Subsidiary Guarantor outside of the insolvency proceedings over the assets of the Issuer. However, any insolvency proceeding over the assets of the Issuer would be a rather strong indication that the overall financial situation of the entire group of affiliated companies has significantly deteriorated, which may cause a Subsidiary Guarantor to subsequently file for insolvency. In an insolvency proceeding over the assets of a Subsidiary Guarantor, the claims arising from a Subsidiary Guarantee are very likely to be treated as a subordinated insolvency claim (nachrangige Insolvenzforderungen). Subordinated insolvency claims are not eligible to participate in the insolvency proceedings over the assets of a Subsidiary Guarantor unless the insolvency court handling the case has granted special permission allowing these subordinated insolvency claims to be filed. Such permission will only be granted if assets in the insolvency estate remain after all claims for preferential satisfaction based on security interests (Absonderungsrechte), preferred claims against the estate (Masseforderungen), and all (non-subordinated) insolvency claims (Insolvenzforderungen) have been settled and satisfied in full. This scenario almost never occurs in insolvency proceedings based on and governed by German insolvency law. The position of secured creditors depends on the type of collateral granted to them. Creditors secured by pledges over partnership interests and shares in subsidiaries of the debtor are entitled to preferential satisfaction with regard to the proceeds realized in an enforcement process which has to be effected by means of a public auction outside the insolvency process. However, in the absence of authoritative case law, it is uncertain whether the secured creditors are entitled to initiate the enforcement process in respect of the pledged partnership interests/shares on their own or, as far as the pledged assets are part of any insolvent estate, whether the insolvency administrator has standing to realize the pledges on behalf of and for the benefit of the secured creditors. In the latter case, the administrator would be entitled to a handling fee of generally 9% of the enforcement proceeds (plus VAT, if any) for the benefit of the insolvent estate which would be deducted from the enforcement proceeds. In addition, the value of the security granted would be significantly impaired or even entirely eliminated in the event that insolvency proceedings are also opened for iesy Hessen or its general partner. In such scenario, the security granted by means of the pledges over the partnership interests or shares would be structurally subordinated and would therefore only be entitled to proceeds from the liquidation of the(se) insolvency estate(s) if there is a remainder after all preferred claims against the insolvency estate, insolvency claims, and security rights granted over the assets of New iesy, iesy Hessen or iesy GP are satisfied in full. Furthermore, in German insolvency proceedings, an insolvency administrator may challenge transactions that are deemed detrimental to insolvency creditors and were effected prior to the commencement of insolvency proceedings. Such transactions can include the payment of any amounts to the holders of the Notes as well as providing credit support for their benefit. The administrator’s right to challenge transactions can, depending on the circumstances, extend to transactions during the ten-year period prior to the filing of the petition for commencement of insolvency proceedings. In the event such a transaction is successfully avoided, the holders of the Notes would be under an obligation to repay the amounts received or to waive the Subsidiary Guarantees or Security. In particular, an act (Rechtshandlung) or a transaction (Rechtsgeschäft) (which term includes the provision of security or the payment of debt) may be avoided in the following cases: • any act granting an insolvency creditor, or enabling an insolvency creditor to obtain, security or satisfaction (i) if such act was taken during the last three months prior to the filing of the petition for the commencement of the insolvency proceedings, provided that the insolvent was illiquid at the time when such act was taken and the creditor knew of such illiquidity at such time, or (ii) if such act was taken after the filing of the petition for the commencement of the insolvency proceedings, provided that the creditor knew of the illiquidity of the insolvent or the filing of such petition; 57

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    PROSPECTUS iesy Repository GmbH €

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    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 and 54: €1,050.0 million would have been
  • Page 55: We depend on payments from our subs
  • 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.
  • Page 105 and 106: 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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