Donald G. and Beverly J. Oren - Page 33




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          have not in fact occurred are not relevant for purposes of                  
          section 465(b)(4).                                                          
               Given the particular arrangement in this case, Mr. Oren was            
          insulated from actually repaying the Dart loans from his own                
          personal resources except if:  (1) Mr. Oren should choose to                
          repay the Dart loans without enforcing the notes against HL and             
          HS; or (2) one of the Dart companies was to become insolvent or             
          bankrupt, and the chain of circular payments was to be broken.              
          Obviously, the former is not sufficient to place Mr. Oren at                
          risk.  Thus, after considering all the facts and circumstances,             
          we must determine whether there was any realistic possibility               
          that the Dart companies would become insolvent or bankrupt and              
          the chain of circular payments would be broken.                             
               Much of Mr. Oren’s testimony at trial was devoted to                   
          explaining the potential risks that he was exposed to by                    
          borrowing money from Dart and loaning money to HL and HS.                   
          Specifically, Mr. Oren suggested that the truckload carriers were           
          exposed to considerable risks from potential tort claims that               
          might arise from automobile accidents.22  If Dart, HL or HS, were           


               22At trial, Mr. Oren recounted an accident involving one of            
          Dart’s carriers.  Dart was found liable and a jury verdict of $7            
          million was rendered in that case.  Mr. Oren emphasized that the            
          verdict could have been substantially greater if it had involved            
          the death of more than one person.  For example, Mr. Oren                   
          recalled that the carrier narrowly missed a bus which was full of           
          passengers.  If the carrier had hit the bus, Mr. Oren speculated            
          that a considerable verdict (in excess of $34 million) would not            
                                                             (continued...)           





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