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structure the BP-AIG notes in accordance with instructions
received from the prospective client’s representative, and that,
after issuance, AIG was willing to modify those notes in
accordance with the purchaser’s wishes, even at a possible
financial loss.
We do not agree that any of the documents respondent refers
to constitute evidence of an “arrangement” that would render the
AIG notes marketable under section 731(c)(2)(B)(ii).
AIG’s willingness to “consider” a modification or repurchase
of the AIG notes does not constitute evidence of an “arrangement”
to convert the AIG notes into cash or marketable securities at
MP’s request, as it would be no more than standard business
practice for a bank or financial institution to at least consider
a customer’s request to modify the terms of its notes. Morever,
respondent’s counsel has made no representations to the Court
that she is able to get Mr. Nelson or anyone else on behalf of
AIG to testify that it was AIG’s “practice” to renegotiate the
terms of or to repurchase its notes.
Nor did AIG’s willingness to structure and, subsequently,
restructure the BP-AIG notes in accordance with the customer’s
wishes at a probable overall loss (on account of transaction
costs) indicate that the parties were not operating at arm’s
length then or later in connection with the AIG notes. An e-mail
from Mr. Nelson makes clear that that willingness (and, in
particular, the willingness to modify the note terms) was a
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