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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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