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that the parties actually agreed to allocate the entire payment
to purchase price.
The attorneys who negotiated the terms of the Settlement
Agreement on behalf of Indeck and Mr. Polsky testified that
interest was and was not intended, respectively. We found their
testimony self-serving and accord it little weight. Far more
reliable, and ultimately persuasive, with respect to the parties’
intent are the contemporaneous draft versions of the Settlement
Agreement that circulated between them during the negotiations
covering the agreement.10 As documented in greater detail in our
fact findings, Indeck’s attorneys, as drafters of the Settlement
Agreement, attempted in various drafts to characterize Component
(ii) (i.e., the amount equal to 10 percent per annum on
$15,030,000 from January 31, 1991 through April 13, 1994) as
“interest” and/or to distinguish it from “purchase price”. Mr.
Polsky’s attorneys specifically rejected these efforts, and
proposed language that deleted any reference to interest in
respect of Component (ii) and instead described both Components
10 We also find it unnecessary to rely on the testimony of
Mr. Polsky in making our findings regarding the intentions of the
parties to the Settlement Agreement, given the probative value of
the draft versions of the Settlement Agreement. In this regard,
Indeck sought to introduce evidence at trial concerning Mr.
Polsky’s compliance with certain other Federal and State income
tax obligations, in an effort to impugn his credibility. We
ruled such evidence inadmissable under rule 403 of the Federal
Rules of Evidence.
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