-21--21-
Cir. 1982), affg. T.C. Memo. 1980-568; Alterman Foods, Inc. v.
United States, 505 F.2d 873, 879 (5th Cir. 1974); Saunders v.
United States, 450 F.2d 1047, 1050 (9th Cir. 1971). While the
Raiders may well have intended to construct the suites, in the
context of the agreement, any obligation to construct the suites
was illusory.
Petitioners point out that the Raiders, under the terms of
the agreement, were to “begin and complete * * * construction as
soon as possible”; the timing of construction, however, was still
to be determined by the Raiders, in their reasonable discretion.
Planning for the suites was undertaken in 1985 and 1986 and
actual construction began and was halted in February 1987. While
construction was stopped due to a dispute between the Raiders and
the LAMCC, the Raiders at this time were contemplating their move
to Irwindale, which was represented by a formal agreement in
August 1987.
Repayment of the $6.7 million was to commence 3 years after
the construction of the suites, and repayment was to be solely
from the net revenues from suite operations. If the Raiders did
not construct the suites, which was the case, there would be no
suite revenues to use for repayment. No default or alternative
payment provision was included in the 1982 MOA, the 1984 lease,
or the promissory note. The nonrecourse promissory note was
secured only by the improvements, i.e., the suites. When the
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