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specifically to paragraph 11(b), which provides that the due date
for payment of principal or interest may be changed only upon
“the affirmative vote of holders of 100 percent in aggregate
principal amount Outstanding of the Notes”. Under paragraph
11(b), that vote by the holders would merely enable the parties
(the debtor, the issuer, and the guarantor) to renegotiate
(“modify, amend or supplement”) the payment due date. During the
hearing, respondent’s counsel acknowledged that, if the mere
right to renegotiate the terms of a note renders it marketable,
all promissory notes that did not specifically prohibit
renegotiation would have to be considered marketable. Morever,
respondent’s posthearing memorandum of law does not reiterate his
reliance on paragraph 11(b) as grounds for treating the AIG notes
as marketable securities. Rather, he stresses the likelihood
that AIG would, in fact, accommodate any request by participating
partner to modify or restructure the terms of the AIG notes. On
the basis of his posthearing submissions, we interpret
respondent’s position to be that the right to seek to renegotiate
the terms of the AIG notes does not, in and of itself, render the
AIG notes marketable under section 731(c)(2)(B)(ii) but, rather,
indicates the presence (or, at least the possibility, requiring
further factual inquiry) of an “arrangement” to modify the notes
in accordance with participating partner’s desires, including the
desire to “readily exchange the AIG * * * notes for cash.”
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