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5 years ago

iesy Repository GmbH - Irish Stock Exchange

iesy Repository GmbH - Irish Stock Exchange

variable retention plan

variable retention plan of 2002 and working capital deficit, deferred income excess or deficit and capital expenditures excess or deficit. In addition, the amount of any loss determined as having been caused by any pre-Closing breach of the Share Purchase Agreement by Kabelnetz Ltd. will be deducted from the consideration paid by iesy Hessen. Any such loss will also lead to a reduction in the total escrow amount (the “Escrow Amount”) as described under “—Escrow arrangement” below. On Closing, iesy Hessen paid the consideration based on agreed draft financial statements (“Effective Date Accounts”) (with accelerated determination by a third party in the absence of agreement). The final amount of Cash Consideration will not be known until accounts, drawn up as at the Effective Date (as defined in the Share Purchase Agreement), are agreed between iesy Hessen and Kabelnetz Ltd. or otherwise determined. It is anticipated that this process of determination could be complete 90 days after Closing, but the process may take up to five months after Closing. Any post-Closing decrease in the purchase price will be to the detriment of the bank account that holds the net escrow amount (the “Escrow Account”) and any post-Closing increase in the purchase price will be paid by iesy Hessen for the benefit of the shareholders and noteholders that made the escrow election (as described below) (the “Escrow Shareholders” and “Escrow Noteholders” respectively) only (subject to a right of set-off in favor of iesy Hessen to the extent that the amount in the Escrow Account has been insufficient to satisfy its claims). The Issuer has agreed to guarantee iesy Hessen’s payment obligations under the Share Purchase Agreement. Reinvestment in TopCo by certain electing ish shareholders and noteholders At the closing of the ish Acquisition, certain ish shareholders and noteholders made an election to use the consideration received in connection with the ish Acquisition to buy shares in TopCo, the parent of the combined entity; as a result, former iesy shareholders were diluted and received cash. For additional information on TopCo’s shareholders following the ish Acquisition, see “Security Ownership.” Escrow Arrangement An amount of €42.9 million of the Cash Consideration at Closing will be retained in an Escrow Account for a period of 12 months from Closing to satisfy any successful warranty/indemnity claims made by iesy Hessen, or to meet any adjustment to the Effective Date Accounts when they are finalized after Closing. The escrow amount will also be reduced by the amount of any deduction from the purchase price for any pre-Closing breach of warranty or other breach of the Share Purchase Agreement (subject to a floor equal to the lesser of €15 million or the amount that would be paid into the Escrow Account before taking account of such pre-Closing deductions). Upon expiry of the 12 month escrow period, subject to the resolution of any pending claims, any amounts remaining in the Escrow Account will be distributed on a pro rata basis (according to their entitlements) to ish shareholders and noteholders who elected to receive a portion of their consideration on a deferred basis from the escrow account. Warranties and Indemnities Kabelnetz Ltd. has warranted and agreed to indemnify iesy Hessen in relation to certain matters. Certain of the warranties are deemed to be repeated at Closing. The subject matter of the warranties includes: (i) accuracy of 2003 audited accounts and 2004 unaudited (or, when final, audited) accounts; (ii) the businesses being sold having full ownership of or a valid right to use all of their assets; (iii) no liabilities (including contingent) in ish above a certain threshold other than as noted in the relevant accounts or disclosed; (iv) enforceability of all contracts of ish with a value above a certain threshold and certain other material contracts; (v) full disclosure of litigation and threatened litigation; (vi) absence of material adverse change in the businesses of ish since December 31, 2004; (vii) certain employee benefit and labor-related matters; (viii) legal title and litigation related issues; and (ix) full disclosure of material facts by Kabelnetz Ltd., including in relation to legal title to the ish entities and litigation with the insolvency administrator of Callahan HoldCo. 64

In addition to the warranties, specific indemnities have been agreed to be given by Kabelnetz Ltd. to iesy Hessen in respect of pre-Effective Date income and capital gains taxes and VAT liabilities incurred more than two months prior to the Effective Date. Breaches of warranty will be compensated on an indemnity basis (i.e. full reimbursement of all losses caused). Under the terms of the Share Purchase Agreement, iesy Hessen is entitled to recover the net present value of future losses or contingent losses as well as losses actually suffered. Limitations on Liability Kabelnetz Ltd. and iesy Hessen have agreed on certain limitations on the liability of Kabelnetz Ltd. for breaches of the Share Purchase Agreement. Following Closing, subject to certain exceptions, Kabelnetz Ltd.’s maximum liability in respect of all breaches of the Share Purchase Agreement (other than breaches of covenants and undertakings) will not exceed the amount of cash available for payment from the Escrow Account. Potential Post-Acquisition Reorganization At the completion of the ish Acquisition, James Bonsall resigned from his positions as Managing Director of Kabelnetz, Kabelnetz GP, ish GP, ish KS GP and KSG. In addition, at the completion of the ish Acquisition, Heinz Benesch resigned as a Managing Director of Kabenetz and Kabelnetz GP, but remains Vice President Legal of ish and Reiner Dienlin resigned as a Managing Director of ish GP, ish KS GP and KSG. Also, concurrently, Michael Block resigned from the position of Managing Director of iesy Repository. Following the completion of the ish Acquisition, Parm Sandhu, Chief Executive Officer of iesy, was appointed to all of the above-mentioned vacated positions. Our post-Closing structure has not been finalized. We may make certain changes, which have not yet been determined, to our group structure following either or both of the ish Acquisition and the Financing; our resulting group structure may be influenced by several factors, including tax and operational considerations. It is currently envisaged that the subsidiaries of Kabelnetz will be merged into Kabelnetz by up-stream and side-stream mergers. Kabelnetz may be subsequently merged into iesy Services. 65

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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

  • 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 and 60: Senior Credit Facilities before the
  • Page 61 and 62: court rulings did not address the p
  • Page 63: THE ISH ACQUISITION The description
  • 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
  • Page 111 and 112: • ish’s premium cable televisio
  • Page 113 and 114: 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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