iesy Repository GmbH - Irish Stock Exchange

• the act granting an insolvency creditor, or enabling an insolvency creditor, to obtain security or satisfaction to
which such creditor was not entitled, or which was granted or obtained in a form or at a time to which or at which
such creditor was not entitled to such security or satisfaction, provided that (i) such act was taken during the last
month prior to the filing of the petition for the commencement of the insolvency proceedings or after such filing,
(ii) such act was taken during the second or third month prior to the filing of the petition and the insolvent was
illiquid at such time, or (iii) such act was taken during the second or third month prior to the filing of the petition
for the commencement of the insolvency proceedings and the creditor knew at the time such act was taken that
such act was detrimental to the other insolvency creditors;
• a transaction by the insolvent that is directly detrimental to the insolvency creditors, provided it was entered into
(i) during the three months prior to the filing of the petition for the commencement of the insolvency proceedings
and the insolvent was illiquid at the time of such transaction and the counter party to such transaction knew of the
illiquidity at such time, or (ii) after the filing of the petition for the commencement of insolvency proceedings and
the counterparty to such transaction knew of either the insolvent’s illiquidity or such filing at the time of the
transaction;
• any act taken by the insolvent during the ten years prior to the filing of the petition for the commencement of
insolvency proceedings, provided that the insolvent took the act with the intent to prejudice its insolvency creditors
and the other party knew of such intention at the time of such act; and
• any act that provides security or satisfaction for a shareholder loan of the insolvent provided in lieu of equity
(eigenkapitalersetzendes Darlehen) or a similar claim if (i) in the case of security, the act took place during the ten
years prior to the filing of the petition for the commencement of the insolvency proceedings or after the filing of
such petition, or (ii), in the case of satisfaction, the act took place during the last year prior to the filing of the
petition for the commencement of the insolvency proceedings or after the filing of such petition.
In this context, “knowledge” is generally deemed to exist if the other party is aware of the facts from which the
conclusion must be drawn that the insolvent (e.g., the Issuer or a Subsidiary Guarantor) was unable to pay its debts generally
as they fell due, that a petition for the commencement of insolvency proceedings had been filed, or that the act was
detrimental to, or intended to prejudice, the insolvency creditors, as the case may be. A person is deemed to have knowledge
of the insolvent’s intention to prejudice the insolvency creditors if it knew of the insolvent’s imminent illiquidity and that the
transaction prejudiced the insolvent’s creditors. With respect to a “related party,” there is a statutory presumption that such
party had “knowledge.” The term “related party” includes, subject to certain limitations, in the case of insolvents that are
corporate persons, members of the management or supervisory board, shareholders owning more than 25% of the insolvent’s
share capital, persons or companies holding comparable positions that give them access to information about the economic
situation of the insolvent, and persons that are spouses, relatives or members of the household of any of the foregoing
persons.
If the Notes, the Subsidiary Guarantees or the Security were avoided or held unenforceable for any other reason, you
would cease to have any claim in respect thereof. Any amounts received from a transaction that has been avoided would have
to be repaid to the insolvent estate.
Furthermore, even in the absence of an insolvency proceeding, a third-party creditor who has obtained an enforcement
order but has failed to get satisfaction of its enforceable claims by a levy of execution, under certain circumstances, has the
right to avoid certain transactions, such as the payment of debt and the granting of security pursuant to the German Code on
Avoidance (Anfechtungsgesetz).
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.
The obligations of iesy Hessen under the Proceeds Loans will be contractually subordinated to all obligations under the
Senior Credit Facilities pursuant to the Intercreditor Agreement. The ability of the Issuer to take enforcement action against
iesy Hessen under the Proceeds Loans will be subject to significant restrictions imposed by the Intercreditor Agreement. The
Proceeds Loans will also be subject to a first-priority pledges in favor of the lenders under the Senior Credit Facilities, and
any foreclosure proceeds of an enforcement of such pledges will be applied first to satisfy the obligations owing under the
Senior Credit Facilities.
As a result of the foregoing:
• in the event of a liquidation, dissolution, bankruptcy, insolvency or similar proceeding involving iesy Hessen, (i)
the lenders under the Senior Credit Facilities will be entitled to payment in full of all obligations owing under the
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