-30--30-
1987
Respondent argues that, if the $10 million was received as a
loan on August 19, 1987, the obligation to repay was immediately
terminated by the terms of the agreement on August 20, 1987.
This argument appears to be merely a reprise of the argument that
we have rejected above, i.e., that the “contingency” of repayment
(the full financing of the transaction) discharged the obligation
to repay. Respondent also argues that Irwindale’s failure to
deposit $10 million in escrow within 7 days of the signing of the
agreement (by August 27, 1987) terminated the Raiders’ obligation
to repay.
Petitioners argue that the escrow requirement was waived to
the extent that the timing of the second $10-million advance was
delayed. Allen Davis and Birren testified at trial, without
contradiction, that the escrow requirement had been waived by the
Raiders in the hope that the stadium deal would work. Their
testimony further shows that the Raiders intended to move to
Irwindale, and the waiver of the escrow deposit was a logical
response by the Raiders to facilitate the deal.
Respondent argues that Irwindale’s failure to prepare and
file the environmental impact report and to pass the general
obligation bond issue by November 4, 1987, terminated the
Raiders’ obligation to repay. The preliminary injunction that
was issued on September 30, 1987, prohibited the transfer of any
funds held in trust and participation in the bond measure
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