UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x : In re: : : Refco Inc., et al., : : Debtors. : : - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x Chapter 11 Case No. 05-60006 (RDD) (Jointly Administered) ORDER UNDER 11 U.S.C. 105, 502, 1125, 1126 AND 1128, FED. R. BANKR. P. 2002, 3003, 3017, 3018 AND 3020 (A) SCHEDULING HEARING ON CONFIRMATION OF PLAN; (B) ESTABLISHING DEADLINES AND PROCEDURES FOR (I) FILING OBJECTIONS TO CONFIRMATION OF PLAN, (II) CLAIM OBJECTIONS, AND (III) TEMPORARY ALLOWANCE OF CLAIMS FOR VOTING PURPOSES; (C) DETERMINING TREATMENT OF CERTAIN UNLIQUIDATED, CONTINGENT OR DISPUTED CLAIMS FOR NOTICE, VOTING AND DISTRIBUTION PURPOSES; (D) SETTING RECORD DATE; (E) APPROVING (I) SOLICITATION PACKAGES AND PROCEDURES FOR DISTRIBUTION, (II) FORM OF NOTICE OF HEARING ON CONFIRMATION AND RELATED MATTERS, AND (III) FORMS OF BALLOTS; (F) ESTABLISHING VOTING DEADLINE AND PROCEDURES FOR TABULATION OF VOTES; AND (G) GRANTING RELATED RELIEF Upon the motion, dated October 5, 2006 (the "Motion"), 1 of the above-captioned debtors and debtors-in-possession (collectively, the "Debtors"), for entry of an order approving, among other things, the Debtors' proposed solicitation procedures; and the Debtors having filed with the United States Bankruptcy Court for the Southern District of New York (the "Bankruptcy Court") the Chapter 11 Plan 1 Unless otherwise defined, capitalized terms used herein shall have the meanings ascribed to them in the Motion.
of Refco Inc. And Certain Of Its Direct And Indirect Subsidiaries (Docket No. 2848) (as it may be amended, supplemented or otherwise modified, the "Plan") and the Disclosure Statement With Respect To Chapter 11 Plan Of Refco Inc. And Certain Of Its Direct And Indirect Subsidiaries (Docket No. 2849) (as it may be amended, supplemented or otherwise modified, the "Disclosure Statement"); and the Court having considered the filed objections to the Motion and having held a hearing on the Motion (the "Hearing") on October 16, 2006; and it appearing that notice of the Motion and the Hearing was good and sufficient under the particular circumstances and that no other or further notice need be given; and the Court having considered the arguments of counsel made at and the record of the Hearing; and after due deliberation thereon, and good cause appearing therefor, it is hereby ORDERED, ADJUDGED AND DECREED THAT: 1. The Motion is GRANTED as provided herein. 2. Confirmation Hearing Date. The hearing (the "Confirmation Hearing") to consider confirmation of the Plan shall commence on December 15, 2006 at 10:00 a.m. (Eastern Time) (the "Confirmation Hearing Date"), or as soon thereafter as counsel can be heard, before the Honorable Robert D. Drain, United States Bankruptcy Judge, in the United States Bankruptcy Court for the Southern District of New York, One Bowling Green, Courtroom 610, New York, New York, 10004-1408. The Confirmation Hearing may be continued from time to time by way of announcement of such continuance in open court, without further notice to parties in interest. 2
3. Deadline and Procedures for Filing Objections to Confirmation. The deadline for filing and serving objections to confirmation of the Plan shall be December 1, 2006 at 4:00 p.m. (Eastern Time) (the "Objection Deadline"). 4. In order to be considered, objections, if any, to confirmation of the Plan must: (a) be made in writing; (b) comply with the Bankruptcy Code, the Bankruptcy Rules and the Local Rules for the United States Bankruptcy Court for the Southern District of New York (the "Local Rules"); (c) set forth the name of the objector, and the nature and amount of any claim or interest asserted by the objector against or in the Debtors or RCM, their estates or their property; (d) state with particularity the legal and factual bases for the objection; (e) be filed with the Bankruptcy Court in accordance with General Order M-242 (as amended) (i) electronically, by registered users of the Bankruptcy Court's case filing system, or (ii) on a 3.5 inch disk (preferably in Portable Document Format (PDF), WordPerfect or any other Windows-based word processing format), by all other parties in interest; (f) be submitted in hard-copy form to the chambers of the Honorable Robert D. Drain (Bankruptcy Court, Room 632); and (g) be served upon the following parties (the "Notice Parties"): Counsel for the Debtors SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP Four Times Square New York, New York 10036-6522 Att'n: J. Gregory Milmoe, Esq. 3
Sally McDonald Henry, Esq. J. Gregory St. Clair, Esq. Counsel for the Chapter 11 Trustee for Refco Capital Markets, Ltd. BINGHAM McCUTCHEN LLP 399 Park Avenue New York, NY 10022 Att'n: Tina L. Brozman, Esq. Timothy B. DeSieno, Esq. Mark W. Deveno, Esq. Counsel for the Official Committee of Unsecured Creditors of Refco Inc., et al. MILBANK, TWEED, HADLEY & McCLOY LLP 1 Chase Manhattan Plaza New York, NY 10005 Att'n: Luc A. Despins, Esq. Susheel Kirpalani, Esq. Dennis C. O'Donnell, Esq. Counsel for Additional Committee of Unsecured Creditors of Refco Inc., et al. KASOWITZ, BENSON, TORRES & FRIEDMAN LLP 1633 Broadway New York, NY 10019 Att'n: David S. Rosner, Esq. Andrew K. Glenn, Esq. Jeffrey R. Gleit, Esq. United States Trustee Office of the United States Trustee 33 Whitehall Street, Suite 2100 New York, NY 10004 Att'n: Andrew D. Velez-Rivera, Esq. (the foregoing subparts (e), (f) and (g) are referred to collectively hereafter as the "Standard Notice Procedures"). Confirmation objections shall be filed and served in 4
accordance with the Standard Notice Procedures so as to be received by the Notice Parties no later than the Objection Deadline. 5. Objections to confirmation of the Plan not timely filed and served in accordance with the provisions of the prior paragraph shall not be considered by the Court and shall be overruled. 6. Deadline for Objections to Claims For Voting Purposes Only. The deadline for filing and serving objections to claims solely for purposes of voting upon the Plan ("Claims Objections") shall be November 20, 2006 at 4:00 p.m. (Eastern Time) (the "Claims Objection Deadline"). Such deadline shall not apply to Claims Objections which may be asserted for purposes other than voting on the Plan. 7. In order to be considered, Claims Objections must: (a) be made in writing; (b) comply with the Bankruptcy Code, the Bankruptcy Rules and the Local Rules; (c) set forth the name of the party asserting the Claims Objection; (d) state with particularity the legal and factual bases for the Claims Objection; and (e) be filed and served in accordance with the Standard Notice Procedures, in each case so as to be received by the Notice Parties and the affected claimant (with a copy to chambers) no later than the Claims Objection Deadline. Claims Objections not timely filed and served in accordance with the foregoing provisions shall not be considered by the Court and shall be overruled. 8. Deadline and Procedures for Temporary Allowance of Claims for Voting Purposes. The deadline for filing and serving motions pursuant to Bankruptcy Rule 3018(a) seeking temporary allowance of claims for the purpose of 5
accepting or rejecting the Plan ("Rule 3018(a) Motions") shall be December 5, 2006 at 4:00 p.m. (Eastern Time) (the "Rule 3018(a) Motion Deadline"); provided, however, that holders of claims whose claims are subject to an objection that was served after the Claims Objection Deadline shall not be subject to the Rule 3018(a) Motion Deadline. 9. In order to be considered, Rule 3018(a) Motions must: (a) be made in writing; (b) comply with the Bankruptcy Code, the Bankruptcy Rules and the Local Rules; (c) set forth the name of the party asserting the Rule 3018(a) Motion; (d) state with particularity the legal and factual bases for the Rule 3018(a) Motion; and (e) be filed and served in accordance with the Standard Notice Procedures, in each case so as to be received by the Notice Parties (with a copy to chambers) no later than the Rule 3018(a) Motion Deadline. Rule 3018(a) Motions not timely filed and served in accordance with the foregoing provisions shall not be considered by the Court and shall be overruled. 10. Any party timely filing and serving a Rule 3018(a) Motion shall be provided a Ballot (as defined below) and shall be permitted to cast a provisional vote to accept or reject the Plan on or before the Voting Deadline (defined herein), pending a final determination by the Court. If, and to the extent that, the Debtors and such party are unable to resolve the issues raised by the Rule 3018(a) Motion prior to such Voting Deadline, such Rule 3018(a) Motion shall be considered by the Court at the Confirmation Hearing, and the Court shall determine whether the provisional Ballot should be counted as a vote on the Plan and, if so, the 6
amount, if any, in which the party filing the Rule 3018(a) Motion shall be entitled to vote. 11. Treatment of Certain Unliquidated, Contingent or Disputed Claims for Notice, Voting and Distribution Purposes. Pursuant to section 105(a) of the Bankruptcy Code, Bankruptcy Rules 2002(a)(7) and 3003(c)(2) and this Court's order (Docket No. 1570) (the "Bar Date Order") establishing July 17, 2006 as the bar date for filing proofs of claim, any creditors (including creditors of RCM) whose claims (a) are scheduled in the Debtors' or RCM s schedules of assets and liabilities (as the same may be amended, the "Schedules") as disputed, contingent or unliquidated and which are not the subject of a timely-filed proof of claim, or a proof of claim deemed timely filed with the Bankruptcy Court pursuant to either the Bankruptcy Code or any order of the Court, or otherwise deemed timely filed under applicable law; or (b) are not scheduled and are not the subject of a timely-filed proof of claim, or a proof of claim deemed timely filed with the Bankruptcy Court pursuant to either the Bankruptcy Code or any order of the Court, or otherwise deemed timely filed under applicable law (the "Non-Voting Claims"), shall be denied treatment as creditors with respect to such claims for purposes of (a) voting on the Plan, (b) receiving distributions under the Plan and (c) receiving notices, other than by publication, regarding the Plan. 12. Voting Procedures. Pursuant to sections 105(a) and 502(a) of the Bankruptcy Code, in addition to the Non-Voting Claims, any claim (or portion thereof) as to which an objection has been filed before the Claims Objection 7
Deadline shall be ineligible to vote on the Plan and such claim shall not be counted in determining whether the requirements of section 1126(c) of the Bankruptcy Code have been met with respect to the Plan (i) unless the claim has been temporarily allowed for voting purposes pursuant to Bankruptcy Rule 3018(a) or (ii) except to the extent that the objection to such claim has been resolved in favor of the creditor asserting the claim. 13. For purposes of voting, the amount of a claim used to calculate acceptance or rejection of the Plan under section 1126 of the Bankruptcy Code shall be: (a) if such claim is not the subject of a timely-filed proof of claim, the amount of such claim that has been scheduled by the Debtors (unless such claim is scheduled at zero or as disputed, contingent or unliquidated); (b) the liquidated amount of such claim specified in a proof of claim (or, if some or all of such claim is the subject of a pending or stayed judicial or administrative proceeding, the liquidated portion of such claim specified in a proof of claim that is not the subject of a pending or stayed judicial or administrative proceeding, if any) that was or is deemed timely filed under applicable law and any applicable orders of the Court and that (i) was not objected to by a party in interest or (ii) if subject to objection, ultimately was allowed by a final order of the Court; or (c) the amount temporarily allowed by the Court for voting purposes pursuant to Bankruptcy Rule 3018(a), in accordance with the procedures set forth above regarding Rule 3018(a) Motions. 14. Ballots cast by holders of claims (i) who have timely filed proofs of claim; (ii) (a) whose proofs of claim are filed in unliquidated or unknown 8
amounts or (b) whose claims are in their entirety the subject of a pending or stayed judicial or administrative proceeding; and (iii) whose proofs of claim are not the subject of an objection filed before the Claims Objection Deadline, shall be counted for purposes of satisfying the numerosity requirement of section 1126(c) of the Bankruptcy Code, but shall not be counted toward satisfying the aggregate dollar amount provision of that section required to determine acceptance or rejection of the Plan, unless temporarily allowed by the Court in a specific amount for voting purposes pursuant to Bankruptcy Rule 3018(a) in accordance with the procedures set forth above regarding Rule 3018(a) Motions. 15. Record Date. The record date for purposes of determining (a) creditors and equity holders entitled to receive Solicitation Packages and related materials, if any, and (b) creditors entitled to vote to accept or reject the Plan and elect certain treatment thereunder shall be October 16, 2006 (the "Record Date"). 16. Notice and Transmittal of Solicitation Packages Including Ballots and Non-Voting Packages. Within five business days after entry of this Order, the Debtors shall mail or cause to be mailed by first class mail to all of their known creditors, the Senior Subordinated Note Indenture Trustee and equity security holders as of the Record Date, and all other entities required to be served under Bankruptcy Rules 2002 and 3017, notice of, inter alia, the Confirmation Hearing substantially in the form attached hereto as Exhibit B (the "Confirmation Hearing Notice"), which form is hereby approved. 9
17. In addition, the Debtors shall mail or cause to be mailed by first class mail, within five business days after entry of this Order, to (a) (i) holders of claims in Contributing Debtors Classes 1, 2 and 3, (ii) holders of claims in FXA Classes 1, 2 and 3, and (iii) holders of claims in RCM Classes 1 and 2 (who are not entitled to vote because they are unimpaired and deemed to have accepted the Plan), a copy of the Notice Of Non-Voting Status With Respect To Unimpaired Classes, substantially in the form attached hereto as Exhibit C-1; and (b) (i) holders of claims and/or interests in Contributing Debtors Classes 7 and 8, (ii) holders of claims in FXA Class 7, and (iii) holders of claims in RCM Class 9 (who are deemed by the Plan Proponents to have rejected the Plan), a copy of the Notice Of Non-Voting Status With Respect To Impaired Classes, substantially in the form attached hereto as Exhibit C-2 (the "Non-Voting Notices" and, together with the Confirmation Hearing Notice, the "Non-Voting Packages"). The Notice Of Non-Voting Status With Respect To Unimpaired Classes, substantially in the form attached hereto as Exhibit C-1, and the Notice Of Non-Voting Status With Respect To Impaired Classes, substantially in the form attached hereto as Exhibit C-2, are hereby approved. Further, the Non-Voting Packages are hereby deemed to constitute an adequate alternative disclosure statement to impaired non-voting classes under 11 U.S.C. 1125(c) and a summary plan under Bankruptcy Rule 3017(d). 18. The Debtors shall mail or cause to be mailed by first class mail, within five business days after entry of this Order, to (a) holders of claims in Contributing Debtors Classes 4, 5(a), 5(b) and 6, (b) holders of claims in FXA 10
Classes 4, 5(a), 5(b) and 6, and (c) holders of claims in RCM Classes 3, 4, 5, 6, 7 and 8 (who are impaired and entitled to vote on the Plan), an information and solicitation package (the "Solicitation Package"). The Solicitation Package shall contain a copy or conformed printed version of (i) the Disclosure Statement, including a copy of the Plan as an exhibit; and (ii) a copy of the order approving the Disclosure Statement. Each of the Solicitation Packages also shall contain one or more ballots (and a preaddressed, postage-prepaid return envelope) appropriate for the specific creditor, in substantially the forms of the proposed ballots collectively attached hereto as Exhibits D-1 through D-10 (as such ballots may be modified for particular classes and with instructions attached thereto, the "Ballots"), which forms of Ballots are hereby approved. Each of the Solicitation Packages shall also contain the Confirmation Hearing Notice. 19. Creditors holding (i) unclassified claims or unimpaired claims and also (ii) claims in a class that is designated as impaired and entitled to vote under the Plan shall receive only the Solicitation Package appropriate for the applicable impaired class; and creditors who have filed duplicate claims in any given class (x) shall receive only one Solicitation Package and one Ballot for voting their claims with respect to that class and (y) shall be entitled to vote their claim only once with respect to that class. 20. Election to Decline Senior Subordinated Note Holder BAWAG Proceeds. Each holder of a Senior Subordinated Note Claim (each, a "Noteholder" and, collectively, the "Noteholders") shall receive Senior Subordinated 11
Note Holder BAWAG Proceeds as a component of its pro rata share of the Senior Subordinated Note Holder Distribution, unless such Noteholder elects not to receive Senior Subordinated Note Holder BAWAG Proceeds by checking the appropriate box on the BAWAG Opt-Out Election Form (or otherwise providing instructions to its Nominee (as defined below) with respect to its election by such means specified by its Nominee). The BAWAG Opt-Out Election Form, substantially in the form attached hereto as Exhibit E, is hereby approved. 21. Only holders of Senior Subordinated Note Claims that vote to reject the Plan shall be eligible to elect not to receive Senior Subordinated Note Holder BAWAG Proceeds, and such an election by any holder of Senior Subordinated Note Claims that votes to accept the Plan shall be disregarded. 22. Holders of Senior Subordinated Note Claims that fail to vote their claims (or whose votes are not counted pursuant to the solicitation procedures set forth in the Motion and this Order) shall be deemed to accept the receipt of Senior Subordinated Note Holder BAWAG Proceeds as a component of their pro rata share of the Senior Subordinated Note Holder Distribution. 23. In order to facilitate the election by Noteholders not to receive Senior Subordinated Note Holder BAWAG Proceeds (the "Noteholder Election"), the Debtors shall mail or cause to be mailed the BAWAG Opt-Out Election Form to each holder of a Senior Subordinated Note Claim determined as of the Record Date, together with appropriate instructions for the proper completion, due execution and timely delivery of the BAWAG Opt-Out Election Form. Nominees holding the 12
Senior Subordinated Notes on behalf of beneficial owners shall (i) forward information with respect to the Noteholder Election to beneficial owners of Senior Subordinated Notes and (ii) effect any Noteholder Election on their behalf through the Depository Trust Company's Automated Tender Offer Program ("ATOP") system. Such Nominees may use the BAWAG Opt-Out Election Form provided or such other form or means as they customarily may use for the purpose of obtaining instructions with respect to an election on account of the beneficial owner's claim. 24. In order to effect the Noteholder Election, each holder of a Senior Subordinated Note Claim must: (i) provide instructions to its Nominee with respect to its Noteholder Election (by returning to its Nominee a duly-completed BAWAG Opt-Out Election Form or by such other means specified by its Nominee) sufficiently far in advance of the Voting Deadline to permit its Nominee to effectuate such holder's Noteholder Election by electronically tendering such holder's Senior Subordinated Notes to The Depository Trust Company ("DTC") by the Voting Deadline; and (ii) vote to reject the Plan, and ensure that such vote is received by the Special Voting Agent 2 by the Voting Deadline, pursuant to the procedures described herein. If (x) a holder of a Senior Subordinated Note Claim fails to cause its Nominee to timely effectuate such holder's Noteholder Election by electronically 2 The Debtors' Voting Agent is Omni Management Group, LLC, and the Debtors' Special Voting Agent is Financial Balloting Group LLC. 13
tendering such holder's Senior Subordinated Notes to DTC; or (y) the Special Voting Agent for any reason does not timely receive the corresponding vote to reject the Plan, such Noteholder Election shall not be valid. 25. The Debtors are authorized to adopt, as necessary, any additional procedures consistent with the provisions specified in the Motion and this Order to properly effect the Noteholder Elections. 26. Ballot Election Not to Accept Contributing Debtors General Unsecured BAWAG Proceeds. Holders of Contributing Debtors General Unsecured Claims shall receive their pro rata share of a distribution of Contributing Debtors General Unsecured BAWAG Proceeds as a component of their Distribution from the Contributing Debtors, unless such holders elect not to receive Contributing Debtors General Unsecured BAWAG Proceeds by checking the appropriate box on Form Ballot D-2. Holders of Contributing Debtors General Unsecured Claims that fail to vote their claims (or whose votes are not counted pursuant to the solicitation procedures set forth in the Motion and this Order), shall be deemed to accept the receipt of Contributing Debtors General Unsecured BAWAG Proceeds as a component of their Distribution from the Contributing Debtors. 27. Ballot Election to Contribute Non-Estate Refco Claims to Private Actions Trust. Holders of Contributing Debtors General Unsecured Claims, FXA General Unsecured Claims, RCM FX/Unsecured Claims and RCM Securities Customer Claims that check the appropriate box on their respective Ballots (Form D-2, D-4, D-6 or D-7, as applicable), shall be deemed to have agreed (i) to contribute 14
their Non-Estate Refco Claims to the Private Actions Trust and (ii) to assign (or cause to be assigned) their allocable share of the class action proceeds from (a) the class action styled In re Refco Capital Markets, Ltd. Brokerage Customer Securities Litigation, 06-CIV 643 (GEL) (S.D.N.Y.) (the "Brokerage Customer Securities Litigation") and (b) any other class actions relating to the Chapter 11 Debtors provided that such election shall not cause to be assigned to the Private Action Trust any claims in any class actions relating to the Chapter 11 Debtors, if any. 28. Holders of Contributing Debtors General Unsecured Claims, FXA General Unsecured Claims, RCM FX/Unsecured Claims and RCM Securities Customer Claims that fail to vote their claims (or whose votes are not counted pursuant to the solicitation procedures set forth in the Motion and this Order), shall be excluded from participation in the Private Actions Trust. 29. Consistent with the Private Actions Trust Agreement, a secondary purchaser of Contributing Debtors General Unsecured Claims, FXA General Unsecured Claims, RCM FX/Unsecured Claims or RCM Securities Customer Claims may participate in the Private Actions Trust only if such purchaser has received an assignment of Non-Estate Refco Claims from the original holder of such Claims and has elected (i) to assign such Non-Estate Refco Claims to the Private Actions Trust and (ii) to assign (or cause to be assigned) its allocable share of (a) the Brokerage Customer Securities Litigation class action proceeds and (b) the proceeds from certified class actions relating to the Chapter 11 Debtors, if any, to the Private Actions Trust as provided herein. 15
30. Ballot Election for Treatment as FXA Convenience Claim. Each holder of a Class 5(a) FXA General Unsecured Claim in an amount greater than $10,000 that checks the appropriate box on its respective Ballot (Form D-4) shall be deemed (i) to agree to have its Class 5(a) FXA General Unsecured Claim reduced in amount to $10,000 and treated as a Class 6 FXA Convenience Claim under the Plan; and (ii) to have voted its Class 6 FXA Convenience Claim (as reduced) to accept the Plan. 31. To the extent that the aggregate amount of distributions to holders of Allowed Class 6 FXA Convenience Claims exceeds $5 million (the "FXA Convenience Class Limit"), the claims permitted to receive such Convenience Class (as defined below) treatment shall be determined by reference to the amount of the claim, with the claim in the lowest amount being selected first and the next largest claim being selected thereafter until the FXA Convenience Class Limit is reached. To the extent any holder of a Class 5(a) FXA General Unsecured Claim has elected treatment as a Class 6 FXA Convenience Claim, but such holder is excluded from Class 6 because the FXA Convenience Class Limit has been reached, then the claim shall be treated as a Class 5(a) FXA General Unsecured Claim in the unreduced amount and the vote initially cast by such holder shall be counted in the tabulation of votes in Class 5(a). Further, to the extent any holder of a Class 6 FXA Convenience Claim is excluded from Class 6 because the FXA Convenience Class Limit has been reached, such Class 6 FXA Convenience Claim shall be treated as a Class 5(a) FXA 16
General Unsecured Claim in the same amount and the vote initially cast by such holder shall be counted in the tabulation of votes in Class 5(a). 32. Ballot Elections Regarding RCM Distribution and RCM BAWAG Proceeds. Holders of Class 3 RCM FX/Unsecured Claims and Class 4 RCM Securities Customer Claims shall be deemed to have agreed (i) to assign their RCM Related Claims against the Debtors to the Litigation Trust, (ii) to affirm their understandings that their RCM Related Claims against any Contributing Non-Debtor Affiliate shall be subordinated pursuant to the Plan, as of each applicable Contributing Non-Debtor Affiliate Trigger Date, to all other existing claims against and equity interests in the applicable Contributing Non-Debtor Affiliate (and that such RCM Related Claims may be deemed released upon the determination of the RCM Trustee, with the consent of the Plan Committee, in accordance with section 10.2(c) of the Plan), and (iii) to release the Secured Lenders (in such capacities) from such holders' Secured Lender Released Claims (if any) (collectively, the "Deemed Agreements"), unless such holders elect not to accept such treatment by checking the appropriate box on their respective Ballots (Form D-6 or D-7, as applicable). If any holder of a Class 3 RCM FX/Unsecured Claim or a Class 4 RCM Securities Customer Claim has voted its claim and agreed to the Deemed Agreements (i.e., by failing to check the appropriate box on their respective Ballots), then such holder shall receive RCM BAWAG Proceeds as a component of its distribution from RCM, unless such holder elects not to receive RCM BAWAG Proceeds by checking the appropriate box on its respective Ballot (Form D-6 or D-7, as applicable); provided, 17
however, that a holder may elect and receive RCM BAWAG Proceeds only if such holder also has elected to accept the Deemed Agreements. Holders of Class 3 RCM FX/Unsecured Claims and Class 4 RCM Securities Customer Claims that fail to vote their claims (or whose votes are not counted pursuant to the solicitation procedures set forth in the Motion and this Order), shall be deemed not to have (x) accepted the Deemed Agreements or (y) elected to receive RCM BAWAG Proceeds; provided, however, that such holder may make such elections, as more fully set forth in the Plan, at a later time pursuant to a RCM Related Claim Subordination Form. 33. Ballot Election for Treatment as RCM FX/Unsecured Convenience Claim. Each holder of a Class 3 RCM FX/Unsecured Claim in an amount greater than $10,000 that checks the appropriate box on its respective Ballot (Form D-6) shall be deemed (i) to agree to have its Class 3 RCM FX/Unsecured Claim reduced in amount to $10,000 and treated as a Class 6 RCM FX/Unsecured Convenience Claim under the Plan; and (ii) to have voted its Class 6 RCM FX/Unsecured Convenience Claim (as reduced) to accept the Plan. 34. To the extent that the aggregate amount of distributions to holders of Allowed Class 6 RCM FX/Unsecured Convenience Claims exceeds $1.458 million (the "RCM FX/Unsecured Convenience Class Limit"), the claims permitted to receive such Convenience Class treatment shall be determined by reference to the amount of the claim, with the claim in the lowest amount being selected first and the next largest claim being selected thereafter until the RCM FX/Unsecured Convenience Class Limit is reached. To the extent any holder of a 18
Class 3 RCM FX/Unsecured Claim has elected treatment as a Class 6 RCM FX/Unsecured Convenience Claim, but such holder is excluded from Class 6 because the RCM FX/Unsecured Convenience Class Limit has been reached, then the claim shall be treated as a Class 3 RCM FX/Unsecured Claim in the unreduced amount and the vote initially cast by such holder shall be counted in the tabulation of votes in Class 3. Further, to the extent any holder of a Class 6 RCM FX/Unsecured Convenience Claim is excluded from Class 6 because the RCM FX/Unsecured Convenience Class Limit has been reached, such Class 6 RCM FX/Unsecured Convenience Claim shall be treated as a Class 3 RCM FX/Unsecured Claim in the same amount and the vote initially cast by such holder shall be counted in the tabulation of votes in Class 3. 35. Ballot Election for Treatment as RCM Securities Customer Convenience Claim. Each holder of a Class 4 RCM Securities Customer Claim in an amount greater than $10,000 that checks the appropriate box on its respective Ballot (Form D-7) shall be deemed (i) to agree to have its Class 4 RCM Securities Customer Convenience Claim reduced in amount to $10,000 and treated as a Class 7 RCM Securities Customer Convenience Claim under the Plan; and (ii) to have voted its Class 7 RCM Securities Customer Convenience Claim (as reduced) to accept the Plan. 36. To the extent that the aggregate amount of distributions to holders of Allowed Class 7 RCM Securities Customer Convenience Claims exceeds $0.333 million (the "RCM Securities Customer Convenience Class Limit"), the 19
claims permitted to receive such Convenience Class treatment shall be determined by reference to the amount of the claim, with the claim in the lowest amount being selected first and the next largest claim being selected thereafter until the RCM Securities Customer Convenience Class Limit is reached. To the extent any holder of a Class 4 RCM Securities Customer Claim has elected treatment as a Class 7 RCM Securities Customer Convenience Claim, but such holder is excluded from Class 7 because the RCM Securities Customer Convenience Class Limit has been reached, then the claim shall be treated as a Class 4 RCM Securities Customer Claim in the unreduced amount and the vote initially cast by such holder shall be counted in the tabulation of votes in Class 4. Further, to the extent any holder of a Class 7 RCM Securities Customer Convenience Claim is excluded from Class 7 because the RCM Securities Customer Convenience Class Limit has been reached, such Class 7 RCM Securities Customer Convenience Claim shall be treated as a Class 4 RCM Securities Customer Claim in the same amount and the vote initially cast by such holder shall be counted in the tabulation of votes in Class 4. 37. Convenience Class Ballot Elections. The Ballots for Class 6 FXA Convenience Claims (Form D-5), Class 6 RCM FX/Unsecured Convenience Claims (Form D-9) and Class 7 RCM Securities Customer Convenience Claims (Form D-10) (collectively, the "Convenience Classes") shall contain the same Ballot elections as the Ballots for Class 5(a) FXA General Unsecured Claims (Form D-4), Class 3 RCM FX/Unsecured Claims (Form D-6) and Class 4 RCM Securities Customer Claims (Form D-7), respectively; provided, however, that Ballot elections 20
made on a particular Convenience Class Ballot shall be effective only if Convenience Class treatment is denied to the claimant making such Ballot elections due to oversubscription of the applicable Convenience Class. 38. Procedures for Transmittal to Record Holders of Public Securities. The Solicitation Package or Non-Voting Package, as appropriate, shall be mailed, within five business days after entry of this Order, to (a) each holder of record of the Debtors' 9% Senior Subordinated Notes due 2012 (the "Senior Subordinated Notes") and equity securities as of the Record Date; and (b) each broker, commercial bank, transfer agent, trust company, dealer or other intermediary or nominee (each, a "Nominee") identified by the Debtors' Special Voting Agent as an entity through which beneficial owners indirectly hold the Senior Subordinated Notes and equity securities. 39. Labels For Record Holders. Wells Fargo Bank, National Association, the indenture trustee for the Senior Subordinated Notes, and The Bank of New York, the transfer agent for the Debtors' equity securities, shall provide the Voting Agent, on or before October 19, 2006 (three business days after the Record Date), with the names, addresses, account numbers and holdings of the respective holders of record as of the Record Date, as an electronic file on disk or via e-mail. 40. Dissemination to Beneficial Owners. The Nominees through which beneficial owners hold Senior Subordinated Notes or equity securities shall promptly distribute Solicitation Packages or Non-Voting Packages, as appropriate, to such holders, and cooperate with the Special Voting Agent to accomplish such 21
distribution, in any case no later than five (5) business days after receipt by such Nominees of the Solicitation Packages or Non-Voting Packages. 41. Voting By Beneficial Owners of Senior Subordinated Notes; Approval of Ballots. Nominees shall obtain the votes of beneficial owners of Senior Subordinated Notes according to one of the following procedures: (i) a Nominee may forward the Solicitation Package to each beneficial owner of the Senior Subordinated Notes for whom it acts as a Nominee for voting and include a postageprepaid, return envelope provided by and addressed to the Nominee so that the beneficial owner may return the completed beneficial owner Ballot directly to its Nominee (the "Master Ballot Method"); or (ii) a Nominee may (a) prevalidate the Ballot by signing it and by indicating on the Ballot the record holder of the Senior Subordinated Notes voted, the principal amount to be voted and the appropriate account number, and (b) forward the Solicitation Package along with the prevalidated Ballot to the beneficial owner of the Senior Subordinated Notes for voting, so that the beneficial owner may return the completed Ballot directly to the Special Voting Agent in the return envelope provided in the Solicitation Package (the "Prevalidated Ballot Method"). 42. Nominees electing to use the Master Ballot Method shall summarize the individual votes of their respective beneficial owners from their beneficial owner Ballots on a master Ballot, in substantially the form of the master Ballot (and instructions attached thereto) attached hereto as Exhibit D-11 (the "Master Ballot"), and then return the Master Ballot to the Special Voting Agent. The 22
Master Ballot substantially in the form attached hereto as Exhibit D-11 is hereby approved. 43. The Debtors shall serve a copy of this Solicitation Procedures Order on the Senior Subordinated Note Indenture Trustee and each Nominee identified by the Special Voting Agent as an entity through which beneficial owners hold the Senior Subordinated Notes and equity securities. The Debtors are authorized to reimburse such entities for their reasonable and customary out-ofpocket expenses incurred in performing the tasks described above upon written request by such entities (subject to the Court's retaining jurisdiction to resolve any disputes regarding any request for reimbursement). 44. When No Notice or Transmittal Necessary. Notwithstanding any provision of this Order to the contrary, no notice or service of any kind shall be required to be made upon any person to whom the Debtors mailed a notice of the meeting of creditors under section 341 of the Bankruptcy Code or notice of the bar date for filing proofs of claim and received either of such notices returned by the United States Postal Service marked "undeliverable as addressed," "moved left no forwarding address," or "forwarding order expired," or similar marking or reason, unless the Debtors have been informed in writing by such person of that person's new address. 45. Publication Notice. The Debtors shall publish the Confirmation Hearing Notice (substantially in the form attached hereto as Exhibit B) once within ten (10) business days after entry of this Order in the national and global 23
editions of USA Today, The Wall Street Journal, The Financial Times, the national edition of The New York Times, the Times of London and the Singapore Straits Times. 46. Voting Deadline for Receipt of Ballots. To be counted, Ballots (including Master Ballots) for accepting or rejecting the Plan must be received by the Voting Agent or Special Voting Agent, as applicable, by 5:00 p.m. (Eastern Time) on December 8, 2006 (the "Voting Deadline"). The Plan Proponents are hereby authorized to extend, by oral or written notice to the Voting Agent or Special Voting Agent, as applicable, the time during which Ballots shall be accepted for any reason from any creditor or class of creditor; provided, however, that any instance in which the Voting Deadline is extended shall be listed in the Voting Certification filed by the Voting Agent or Special Voting Agent, as applicable. 47. Procedures for Vote Tabulation - Votes Counted. Any Ballot or Master Ballot, as appropriate, that is properly executed and timely received, and that is cast as either an acceptance or rejection of the Plan, shall be counted and shall be deemed to be cast as an acceptance or rejection, as the case may be, of the Plan. The failure of a holder of a claim in Contributing Debtors Classes 4, 5(a) or 6; FXA Classes 4, 5(a) or 6; or RCM Classes 3, 4, 5, 6 or 7 to timely deliver a properly executed Ballot shall be deemed to constitute an abstention by such holder with respect to voting on the Plan, and such abstention shall not be counted as a vote for or against the Plan. 24
48. Each Holder of the Senior Subordinated Notes shall be deemed to have voted the full principal amount of its claim relating to such Senior Subordinated Notes, notwithstanding anything to the contrary on the Ballot. 49. Votes Not Counted. Unless otherwise ordered by the Court after notice and a hearing, the following Ballots or Master Ballots shall not be counted or considered for any purpose in determining whether the Plan has been accepted or rejected: (a) (b) (c) (d) (e) (f) (g) (h) Any Ballot or Master Ballot received after the Voting Deadline (as extended by the Plan Proponents as provided herein); Any Ballot or Master Ballot that is sent by facsimile transmission, that is illegible, or that contains insufficient information to permit the identification of the claimant; Any Ballot that indicates neither an acceptance nor a rejection, or indicates both an acceptance and rejection, of the Plan; Any Ballot cast by a person or entity that does not hold a claim in a class that is entitled to vote to accept or reject the Plan; Any Ballot or Master Ballot that does not contain an original signature; Any form of ballot or master ballot other than the official form sent by the Voting Agent or Special Voting Agent, as applicable, or a copy thereof; Any Ballot (other than a Master Ballot) that casts part of its vote in the same class to accept the Plan and part to reject the Plan; or Any Ballot or Master Ballot received that the Voting Agent or Special Voting Agent, as applicable, cannot match to an existing database record. 50. Withdrawal of Vote. Any party who has delivered a valid Ballot for the acceptance or rejection of the Plan may withdraw, subject to the 25
Debtors' right to contest the validity of any such withdrawal, such acceptance or rejection by delivering a written notice of withdrawal to the Voting Agent or Special Voting Agent, as applicable, at any time prior to the Voting Deadline; provided, however, that any instance in which a Ballot is withdrawn shall be listed in the Voting Certification filed by the Voting Agent or Special Voting Agent, as applicable. A notice of withdrawal, to be valid, shall (a) contain the description of the claim(s) to which it relates and the aggregate principal amount represented by such claim(s), (b) be signed by the withdrawing party in the same manner as the Ballot being withdrawn, (c) contain a certification that the withdrawing party owns the claim(s) and possesses the right to withdraw the Ballot sought to be withdrawn and (d) be received by the Voting Agent or Special Voting Agent, as applicable, prior to the Voting Deadline. 51. Changing Votes. Notwithstanding Bankruptcy Rule 3018(a), whenever two or more Ballots or Master Ballots are cast voting the same claim(s) prior to the Voting Deadline, the Ballot or Master Ballot dated latest but received prior to the Voting Deadline shall be deemed to reflect the voter's intent and thus to supersede any prior Ballots or Master Ballots, as the case may be, without prejudice to the Debtors' right to object to the validity of the later Ballot or Master Ballot on any basis permitted by law, including under Bankruptcy Rule 3018(a) and, if the objection is sustained, to count the first Ballot or Master Ballot for all purposes; provided, however, that any instance in which a vote is changed by the filing of a 26
superseding Ballot shall be listed in the Voting Certification filed by the Voting Agent or Special Voting Agent, as applicable. 52. No Division of Claims or Votes. Except as it may relate to the procedures implemented with respect to Master Ballots, (a) each creditor who votes must vote the full amount of each claim voted either to accept or reject the Plan; and (b) each creditor who votes and holds multiple claims within a particular class must vote all such claims either to accept or reject the Plan. The Ballots of creditors failing to vote in the manner specified in this paragraph shall not be counted for any purpose. 53. Procedures for Counting Ballots from Holders of Senior Subordinated Notes. Unless Ballots are prevalidated as described in the Motion and this Order, Nominees through which beneficial owners hold Senior Subordinated Notes shall receive and summarize on a Master Ballot all beneficial owner Ballots cast by the beneficial owners they serve and then return the Master Ballot to the Special Voting Agent on or before the Voting Deadline. 54. Nominees shall retain for inspection by the Court for one year following the Voting Deadline (i) the Ballots cast by their beneficial owners and (ii) any BAWAG Opt-Out Election Forms (or other such forms used by such Nominees for the purpose of obtaining instructions with respect to an election on account of their beneficial owners' claims) received from their beneficial owners. 55. Votes cast by the beneficial owners through a Nominee and transmitted by means of a Master Ballot shall be applied against the positions held 27
by such Nominee as evidenced by the list of record holders of the Senior Subordinated Notes, or through participation in a securities depository. Votes submitted by a Nominee on a Master Ballot shall not be counted in excess of the position maintained by the respective Nominee on the Record Date. 56. To the extent that conflicting, double or over-votes are submitted on Master Ballots and/or prevalidated Ballots, the Special Voting Agent shall attempt to resolve such votes prior to the vote certification in order to ensure that the votes of beneficial owners of Senior Subordinated Notes are accurately tabulated. Further, to the extent that such conflicting, double or over-votes are not reconcilable prior to the vote certification, the Special Voting Agent shall count votes in respect of each such Master Ballot or prevalidated Ballot in the same proportion as the votes of the beneficial owners or entitlement holders to accept and reject the Plan submitted on such Master Ballot or prevalidated Ballot, but only to the extent of the applicable Nominee's position on the Record Date in the Senior Subordinated Notes. 57. Nominees are authorized to complete multiple Master Ballots, and the votes reflected by such multiple Master Ballots shall be counted, except to the extent that they are duplicative of other Master Ballots. If two or more Master Ballots submitted are inconsistent in whole or in part, the Master Ballot received closest in time and prior to the Voting Deadline shall, to the extent of such inconsistency, supersede and revoke any prior Master Ballot, subject to the Plan Proponents' rights to object to the validity of any subsequently-received Master 28
Ballot on any basis permitted by law, including under Bankruptcy Rule 3018(a) and, if such objection is sustained, the prior Master Ballot then shall be counted. 58. Classes Deemed to Reject. The holders of Contributing Debtors Class 7 Subordinated Claims, Class 8 Old Equity Interests, Class 7 FXA Subordinated Claims and Class 9 RCM Subordinated Claims and shall be deemed to have rejected the Plan, and the Debtors are not required to solicit votes on the Plan from such holders. 59. Certification of Vote. Notwithstanding Local Rule 3018-1(a), the Debtors' Voting Agents shall file their voting certifications (the "Voting Certifications") on or before December 12, 2006. Such Voting Certifications shall list, among other things, all instances in which (i) Ballots were withdrawn, (ii) votes were changed by the filing of superseding Ballots and (iii) the Voting Deadline was extended. 60. The Debtors shall serve such Voting Certifications on all parties listed on the master service list maintained by the Debtors in these cases (by overnight courier or electronic mail, in accordance with the case management procedures applicable in these cases), and post such Voting Certifications on the Debtors' case website as soon as practicable after such Voting Certifications are filed. 61. Requests for Demonstration of Cause. Parties in interest are entitled to request that the Debtors demonstrate cause for any instance in which (i) a Ballot was withdrawn, (ii) a vote was changed by the filing of a superseding Ballot or (iii) the Voting Deadline was extended (any such request, a "Request for Cause"). 29
The deadline for filing and serving a Request for Cause shall be December 14, 2006 at 12:00 noon (Eastern Time) (the "Request Deadline"). 62. In order to be considered, Requests for Cause must: (a) be made in writing; (b) set forth the name of the party making the Request for Cause; (c) state with particularity the particular instance(s) in which (i) Ballots were withdrawn, (ii) votes were changed by the filing of superseding Ballots or (iii) the Voting Deadline was extended that are the subject of the Request for Cause; and (d) be filed and served in accordance with the Standard Notice Procedures, in each case so as to be received by the Notice Parties (with a copy to chambers) no later than the Request Deadline; provided, however, that service on all Notice Parties (except for the United States Trustee) may be made by facsimile and electronic mail. Requests for Cause not timely filed and served in accordance with the foregoing provisions may not be considered by the Court and may be overruled. 63. Notice of Effective Election. Notwithstanding Local Rule 3018-1(b), on or before December 12, 2006, the Debtors' Voting Agents shall serve notice to any holder of a claim who is permitted to make an election with respect to the treatment of such claim, but whose election is deemed ineffective or otherwise is not counted. 64. Service and notice adequate and sufficient. Service of all notices and documents described herein in the time and manner as set forth herein shall constitute due, adequate and sufficient notice, and no other or further notice shall be necessary. 30
65. The requirement of Local Bankr. R. 9013-1(b) that any motion filed shall be accompanied by a separate memorandum of law is deemed satisfied by the Application. Dated: New York, New York October 20, 2006 /s/ Robert D. Drain Honorable Robert D. Drain United States Bankruptcy Judge 31