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5 years ago

iesy Repository GmbH - Irish Stock Exchange

iesy Repository GmbH - Irish Stock Exchange

Existing Notes share

Existing Notes share ratably in all of the security. In addition, in certain circumstances the collateral subject to the Security, consisting of the equity interests in New iesy, iesy Hessen and iesy GP and the Proceeds Loans, may be pledged to other creditors on a basis that is superior to the claim of the Notes or pursuant to which other debt is entitled to share ratably in the collateral, such as in case of the issuance of any Additional Notes. If you (or the Trustee on your behalf) receive any proceeds of an enforcement of Security prior to the satisfaction of the claims of those that are superior or ratable with those of the Notes, you (or the Trustee on your behalf) will be required to turn over such proceeds until superior claims are satisfied and until ratable claims are equally satisfied. Hence, you will recover less from the proceeds of an enforcement of the Security than you otherwise would have. In addition, pursuant to the Intercreditor Agreement, the Security will also be subject to a standstill on enforcement of 179 days, subject to certain exceptions. In the event of an enforcement of the security in favor of the lenders under the Senior Credit Facilities, subject to compliance with the Intercreditor Agreement, and in certain other circumstances, the Security may be released without the need for any consent from the Noteholders or the Trustee. As a result of these and other provisions governing the Subsidiary Guarantees and the Security and in the Intercreditor Agreement, you may not be able to recover any amounts under the Subsidiary Guarantees or the Security in the event of a default on the Notes. It is possible that the Security may not be enforceable. Under German law, a security interest may not be enforceable for the benefit of beneficiaries who are not a party to the relevant pledge agreement creating such security interest. A pledge is a so-called “accessory” security interest (akzessorische Sicherheit) which means that the existence of the pledge is dependent on the existence of the underlying secured claim. At the same time, pledges require that the pledgee and the secured creditor be the same person. Pledges cannot be held by third parties who do not hold the secured claim. The holders of interests in Notes from time to time will not be party to such pledge agreements. In order to permit holders of Notes from time to time to have a secured claim, the Intercreditor Agreement to which the Trustee will become a party provides for the Security Trustee to be a joint and several creditor of each holder of Notes from the date of the issuance of the Notes until full repayment. The effect of this provision will be to give the Security Trustee a pledge equal to the amount outstanding under the Notes. The Security Trustee will undertake not to exercise that pledge without the consent of the Trustee. However, the Security Trustee’s right will not be limited to any extent in whatever capacity to take any action to protect or to preserve any rights under the Subsidiary Guarantees or the Security or to enforce any security interest created thereby as contemplated by the Intercreditor Agreement or the Security Documents (or to take any action reasonably incidental to any of the foregoing). This procedure has not yet been tested under German law, and we cannot assure you that it will eliminate or mitigate the risk of the unenforceability of the pledge under German law. Moreover, under German law, in the event that the Issuer or any pledgor would be subject to insolvency proceedings, the Security could also be subject to potential challenges under the “claw back” provisions of German insolvency law (in addition to the avoidance rights described above). If any challenge to the validity or enforceability of the Security is successful, you may not be able to recover any amounts under the Security. You may not be able to enforce, or recover any amounts under, the Subsidiary Guarantees or security granted by a subsidiary of the Issuer due to contractual restrictions on enforcement relating to German corporate law requirements. The enforcement by any holder of the Notes, the Trustee or the Security Trustee of the Subsidiary Guarantees or the Security will be limited by virtue of specific limitation language within the Subsidiary Guarantees and the agreements creating such security, respectively, reflecting the requirements under the capital maintenance rules imposed by Sections 30 and 31 et seq. of the German Limited Liability Companies Act. These capital maintenance rules prohibit the direct or indirect repayment of a German limited liability company’s registered share capital to its shareholders (including payments pursuant to guarantees or security in favor of the debt of such shareholders). Payments under the Subsidiary Guarantees or with respect to the Security will be limited if, and to the extent that, such payments would cause the net assets (excluding, according to recent case law, up-stream and cross-stream intercompany loans and similar receivables) of such Subsidiary Guarantor or security provider (if it is a limited liability company) or, in the case of a Subsidiary Guarantor or security provider which is a limited partnership such as iesy Hessen, the net assets of its general partner to fall below the amount of its registered share capital (Stammkapital). If such event occurs, the Trustee is not entitled to enforce such Subsidiary Guarantee or security, respectively, save for the amount which may be enforced without diminishing the registered share capital of such Subsidiary Guarantor or security provider or, in the case of a limited partnership, the registered share capital of its general partner. In addition, German court rulings have recently held that the shareholder of a German limited liability company must not deprive a limited liability company of the liquidity necessary for it to meet its own payment obligations. Although these 60

court rulings did not address the possible unenforceability of up-stream or cross-stream guarantees or of security granted on an up-stream or cross-stream basis, it cannot be excluded that courts may apply this case law to payments (i) by the Subsidiary Guarantors under the Subsidiary Guarantees or by the Subsidiary Guarantors or security providers with respect to security granted by them or (ii) with respect to enforcement of the Subsidiary Guarantees or security granted by Subsidiary Guarantors or security providers to the extent such payments or enforcement would deprive the Subsidiary Guarantors or the security providers of the liquidity necessary to meet their respective payment obligations. In such case, the amount of any recovery of the Trustee for your benefit from the enforcement of the Subsidiary Guarantees or of such security may be further reduced. A refinancing of our Senior Credit Facilities could result in a release of the Security. Although the Security may be reinstated on substantially similar terms, the Security could be subject to avoidance by an insolvency administrator or third-party creditors. The Intercreditor Agreement provides that, upon a release of the first-priority security interest provided under the Senior Credit Facilities in connection with a refinancing thereof, whether by operation of law or otherwise, the Security will be released. Although the Security would, immediately after new first-priority security has been granted to secure new senior debt, be replaced by a new second-priority security interest on substantially the same terms as the Security, there will be a period of three months following the date on which such replacement occurs during which, under German law, the transaction creating the new security may be avoided by an insolvency administrator if the Issuer, New iesy, iesy Hessen, iesy GP, iesy Services, Kabelnetz or another Subsidiary Guarantor becomes insolvent. In certain circumstances, an insolvency administrator or third-party creditors may have a right to avoid the reinstatement of security in the ten years prior to the commencement of insolvency proceedings or the date of avoidance, respectively. See “—Risks Relating to the Notes, the Subsidiary Guarantees, and the Security—German insolvency laws may preclude the recovery of payments due under the Notes.” We may not be able to finance a change of control offer required by the Indenture, and the completion of certain acquisitions or other transactions may not constitute a change of control. The Indenture contains provisions relating to certain events constituting a “Change of Control” of the Issuer. Upon the occurrence of such a Change of Control and a related decline in the ratings of the Notes, as further defined in “Description of the Notes—Change of Control Triggering Event” (together, a “Change of Control Triggering Event”), the Issuer will be required to offer to repurchase all outstanding Notes at a price equal to 101% of their aggregate principal amount, plus accrued and unpaid interest and additional amounts, if any, to the date of repurchase. If a Change of Control Triggering Event were to occur, the Issuer may not have sufficient funds available, or may not be able to obtain the funds needed, to pay the purchase price for all of the Notes tendered by holders deciding to accept the repurchase offer. The restrictions in the Senior Credit Facilities, the Intercreditor Agreement and instruments governing the Issuer’s and its subsidiaries’ other existing and future indebtedness may also prohibit the Issuer from being provided with the funds necessary to purchase any Notes prior to their stated maturity, including upon a Change of Control Triggering Event. Before the Issuer can be provided with any funds to purchase any Notes, we will be required to: • repay indebtedness under the Senior Credit Facilities, or, possibly, other existing and future indebtedness that ranks senior to the Notes or the Subsidiary Guarantees; or • obtain a consent from lenders of other indebtedness, including the lenders under the Senior Credit Facilities, to make funds available to permit the repurchase of the Notes. A Change of Control Triggering Event of the Issuer may result in a mandatory prepayment event, tender offer or event of default under the Senior Credit Facilities and may cause the acceleration of other indebtedness. In any case, third-party financing would be required in order to provide the funds necessary for the Issuer to make the change of control offer. We may not be able to obtain such additional financing. The completion of any acquisition or other industry consolidation we undertake may not trigger a Change of Control Triggering Event. In addition, BC Partners (as defined in “Description of the Notes”) is included as a “Permitted Holder” for purposes of the definition of “Change of Control” under the Indenture. See “Description of the Notes—Change of Control Triggering Event.” In addition, the definition of “Change of Control” in the Indenture refers to a sale, lease or other disposition of “all or substantially all” of our assets to a person or group of persons. There is little New York case law interpreting the phrase “all or substantially all” in the context of an indenture. Because there is no precise established definition of this phrase, your ability to require us to repurchase such Notes as a result of a sale, lease or other disposition of all or substantially all of our assets to a person or group of persons may be uncertain. 61

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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”

  • 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 and 56: We depend on payments from our subs
  • Page 57 and 58: • Claims against the Issuer and s
  • Page 59: Senior Credit Facilities before the
  • 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
  • Page 107 and 108: Income Statement Data Audited year
  • Page 109 and 110: 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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