-14--14-
Obstacles in the performance of the terms of the agreement
were contemplated by the Irwindale MOA, in the following
provisions:
8.5 If any obstacle is imposed by third parties
(such as litigation, legislation, or failure to
cooperate) it is agreed that both parties pledge good
faith cooperation to overcome any such obstacle.
However, these obstacles will not be construed as a
tolling event for the project itself, nor will it be
construed as a reason to refund any exchange of monies,
nor will it be construed as a forfeiture. It is
further agreed, that both parties will move forward
with the project and mutually work to resolving the
problem. * * *
8.6 Any third party obstacle will not excuse
either party from proceeding with the project except to
the extent ordered by court, e.g. an injunction.
Sections 8.5 and 8.6 did not apply to Irwindale’s obligation to
place $10 million in escrow. If Irwindale failed to fulfill its
obligations under the agreement by November 4, 1987, and that
failure was not due to third-party obstacles, the Raiders were to
be relieved of all obligations under the Irwindale MOA and were
entitled to retain $20 million, without a repayment obligation,
as consideration for the execution of the Irwindale MOA.
On September 8, 1987, the first of two lawsuits was filed to
prevent the transaction contemplated by the Irwindale MOA. A
preliminary injunction that was issued on September 30, 1987, and
ultimately a preemptory writ of mandate that was issued on
March 29, 1988, prevented further performance under the Irwindale
MOA until an environmental impact report was made concerning the
project. Under the terms of the Irwindale MOA, Irwindale was
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