Henry and Esther Misle - Page 15




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            resulting capital gain would be recognized using the installment                           
            sale method of accounting, and (2) the covenant not to compete                             
            payments made under the EOA, at $23,767 per month, would be taxed                          
            as ordinary income to Henry in the year received.  The Baird,                              
            Kurtz letter also stated with respect to the $150,000 from Bryan                           
            used to fund the escrow account that “It is our understanding                              
            that you [Henry] owe Bryan $150,000, which will be repaid in                               
            1990.  Any additional amounts transferred to him [Bryan] would                             
            constitute gifts”.  Baird, Kurtz attached a schedule to its                                
            letter entitled “CASH FLOW PROJECTIONS-–HENRY MISLE” which                                 
            assumed, among other things, that Henry’s debts to Chevrolet and                           
            FirsTier would remain intact and would be amortized over 10 years                          
            and that Bryan would receive $150,000 from Henry in 1990 as                                
            repayment of Bryan’s loan.                                                                 
            D.    State Litigation                                                                     
                  In January 1991, disputes arose among HJA, Henry, Abram, and                         
            Julius relating to the EOA.  Sometime before January 21, 1991,                             
            HJA stopped making payments into the sweep account under the EOA.                          
            On January 21, 1991, Henry and Bryan filed a lawsuit in the                                
            District Court of Lancaster County, Nebraska, against HJA,                                 
            Abram,17 and Julius, alleging breach of the EOA (the State                                 
            litigation).  The defendants counterclaimed, alleging                                      
            misrepresentation and a breach of covenants made by Henry in the                           

                  17During the course of the State litigation, Abram died and                          
            his estate was substituted as a party.                                                     




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