Full opinion text
OPINION BISSELL, District Judge. This matter arises before the Court on the basis of plaintiff Carteret’s application for a preliminary injunction restraining the defendants from taking any regulatory action against it for failure to meet any and all such regulations as a result of defendants’ refusal to permit plaintiff to utilize its “supervisory goodwill” in determining compliance with such regulations. I. FACTS AND BACKGROUND A. The Parties Plaintiff Carteret Savings Bank, FA (“Carteret”) is one of the largest savings and loan associations in New Jersey. (Plaintiff’s Br. at 5; O’Brien Aff., ¶1¶ 4-6). Carteret converted, in 1982, to a federally chartered mutual association. In 1983, it converted to a federally chartered stock association. Its shares were publicly traded until 1986, and are presently owned by Carteret Bancorp, which is in turn owned by AmBase Corporation, whose shares are publicly traded. Defendant Office of Thrift Supervision (“OTS”) is the successor in interest to the Federal Home Loan Bank Board (“FHLBB”), which had worked in conjunction with the Federal Deposit Insurance Corporation’s (“FDIC”) predecessor, Federal Savings and Loan Insurance Corporation (“FSLIC”). FHLBB was charged with regulating and supervising federally chartered thrift institutions, acting as the operating head of FSLIC, and enforcing compliance by such institutions with various banking regulations, particularly the regulatory capital (or “net worth”) requirements. Home Owners’ Loan Act of 1933, Pub.L. No. 101-73, § 301, 83 Stat. 277 (“HOLA,” codified as amended at 12 U.S.C. §§ 1461-1468c). FHLBB was also authorized to appoint FSLIC as conservator or receiver for an insolvent thrift, 12 U.S.C. § 1464(d)(6), and to prescribe rules for the liquidation of such thrifts under the circumstances provided in the statute and applicable regulations. 12 U.S.C. § 1464(d)(1). FSLIC was essentially designed to insure deposit accounts of federally chartered thrifts upon compliance with Title IV of the National Housing Act of 1934 (“NHA”), 12 U.S.C. § 1724 et seq., in addition to numerous other assigned duties. One of these duties, however, is particularly important to the present case: FSLIC was authorized to extend assistance to failing thrifts, including the arrangement of mergers with “healthy” thrifts. 12 U.S.C. § 1729(f)(1) (repealed). Both the FHLBB and FSLIC were abolished by the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”), Pub.L. No. 101-73, 103 Stat. 183, codified at 12 U.S.C. and other titles. OTS was then established and acquired most of the functions of FHLBB. 12 U.S.C. §§ 1462a, 1464. FIRREA also transferred many of FSLIC’s functions to the FDIC. 12 U.S.C. §§ 1811, 1814. FIR-REA was further amended by the Comprehensive Thrift and Bank Fraud Prosecution and Taxpayer Recovery Act of 1990, Pub.L. No. 101-647, 104 Stat. 4859 (Nov. 19, 1990), to be codified throughout 12 U.S.C. In addition, FIRREA has been modified by the Technical and Miscellaneous Amendments Act, Pub.L. No. 101-647, 104 Stat. 4906 (Nov. 19, 1990) (collectively, the “1990 Act”). B. The Events The “S & L crisis” of the late 1970’s and early 1980’s is well documented. High interest rates and record inflation caused many thrifts which held long-term, low-yield, fixed-rate mortgages to experience operating losses and ultimately fail. The government had to act in order to diminish the crisis. The present litigation revolves around what the government did then. The parties herein tell the story differently, as to what exactly the government did and pursuant to what authority. Carteret describes the events of the 1980’s as follows. FHLBB and FSLIC implemented a policy of requiring problem thrifts to merge into healthy institutions, in order to save the cost and cash outlays required to liquidate the failing bank. (Plaintiffs Br. at 8; Fau-cette Aff., ¶ 6; O’Brien Aff., HU 8, 9). Despite any possible savings, the cost of the mergers was very high because FSLIC provided supervisory financial assistance to the merging institutions. (Plaintiff’s Br. at 8 (citing Beesley Remarks, 3/3/82, at Plaintiff’s App., Exh. 6)). These cash outlays were threatening to bankrupt the FSLIC. (Plaintiff’s Br. at 9 (citing Beesley Remarks 9/9/82, at Plaintiff’s App., Exh. 4)). Therefore, FSLIC promised healthy acquiring institutions that goodwill derived under the purchase method of accounting would count dollar-for-dollar as regulatory capital, for purposes of determining compliance with government standards. (Plaintiff’s Br. at 9; Beesley Remarks, 4/13/82 at 6-8, Plaintiff’s App., Exh. 5; Pratt Interview, 11/24/81 at 6-7, Plaintiffs App., Exh. 9). The latter “promise” represents the crux of the present dispute. OTS asserts, essentially, that the government made no such promise, and even if it did FIRREA overrides it to preclude the use of supervisory goodwill in determining compliance with the capital regulations. C. The Relevant Transactions and Related Documents 1. The 1982 Acquisitions On September 30, 1982, Carteret acquired, under the supervision of FSLIC and FHLBB, two FSLIC-insured failing thrifts. (O’Brien Aff., If 14). One was the First Federal Savings and Loan Association of Delray Beach (“Delray”) in Florida, and the other was the Barton Savings and Loan Association (“Barton”) of New Jersey. (Id.) Carteret received $11.7 million in financial assistance for the acquisition of Barton, but no financial assistance for the acquisition of Delray. (Id.) As of the acquisition date, Barton had assets with a fair market value of $126 million and liabilities with a fair market value of $172 million, such that the acquisition left $46 million of goodwill. (Id., 1115). Similarly, Del-ray had assets with a fair market value of $644 million and liabilities valued at $812 million, such that it had $168 million in goodwill. (Id.) Thus, the acquisition of these two institutions provided Carteret with $214 million in supervisory goodwill, about 90% of the amounts presently in question. (Id., ¶¶ 15, 16). Numerous documents were generated as a result of the merger of Delray and Barton into Carteret. The first is a letter from FHLBB Secretary J.J. Finn to Robert O’Brien of Carteret, dated September 30, 1982, which confirms the parties’ understanding. (See O’Brien Aff., Exh. A (referred to herein as “1982 Forbearance Letter”)). This letter was subsequently clarified by letter of the FHLBB dated October 12, 1988. (See O’Brien Aff., Exh. B). The second is an “Assistance Agreement” between FSLIC and Carteret, dated September 29, 1982 and signed by the parties on the 29th and 30th of that month. (See O’Brien Aff., Exh. C). The third document is FHLBB Resolution No. 82-662, adopted on September 30, 1982, approving the merger. (See Faucette Aff., Exh. H). Car-teret has also provided the Court with the various bid letters it submitted to FHLBB prior to completion of the transaction. (See Faucette Aff., Exhs. D, E, F). 2. The 1986 Transactions On June 6, 1986, Carteret acquired two additional troubled thrifts in another supervisory merger. One is the First Federal Savings and Loan Association of Montgomery County (“First Federal”), in Blacksburg, Virginia, and the other is Mountain Security Savings Bank (“MSSB”) of Wytheville, Virginia. (O’Brien Aff., ¶ 25). The acquisition of these two thrifts resulted in additional supervisory goodwill in the amount of $22,059,000. (Id.) As with the 1982 acquisitions, this transaction generated various documents: FHLBB Resolution No. 86-566 (Blanco Aff., Exh. D); an Acquisition Agreement between FSLIC and Carteret (id., Exh. E); an Assistance Agreement between FSLIC and Carteret (id., Exh. F); and various revised bid letters to FSLIC and FHLBB from Car-teret (Blanco Aff., Exhs. A, B, C). Carteret contends that the documents for each transaction constitute a binding contract, permitting it to use supervisory goodwill in determining whether it has met its regulatory requirements. D. FIRREA FIRREA sharply curtailed the use of supervisory goodwill in determining whether regulatory capital requirements are met. Amortization of supervisory goodwill is limited to 20 years. 12 U.S.C. § 1464(t)(9)(B). In addition, its use to calculate “core capital,” an accounting category that now must amount to no more than three percent of the institution’s total asset base, is being phased out. 12 U.S.C. § 1464(t)(2)(A). By January 1, 1995, supervisory goodwill cannot be used' at all to calculate core capital. 12 U.S.C. § 1464(t)(3)(A). At the same time, FIRREA has strengthened the capital standards which savings associations must meet. Specifically, “[t]he Director [of OTS] shall, by regulation, prescribe and maintain uniformly applicable capital standards for savings associations. Those standards shall include (i) a leverage limit; (ii) a tangible capital requirement; and (iii) a risk-based capital requirement.” 12 U.S.C. § 1464(t)(l)(A). All three of these standards must be met. 12 U.S.C. § 1464(t)(l)(B). The OTS, the agency charged with enforcing FIRREA, has interpreted its requirements as applying to all thrifts not specifically exempted by FIRREA. Accordingly, on January 9, 1990, OTS issued “Thrift Bulletin 38-2” which prohibits the use of supervisory goodwill in determining whether a savings association is in capital compliance, regardless of any previous for-bearances issued. Thus, argues OTS, even if Carteret had an otherwise enforceable contract to use supervisory goodwill to meet capital requirements, this contract has been abrogated by the statute and is therefore no longer enforceable. E. Recent Events In June and December 1990, OTS prepared an examination report of Carteret. (Walsh Aff., H 30). In that report, the regulators did not include Carteret’s supervisory goodwill as regulatory capital in calculating Carteret’s compliance, consistent with its position. (Id.) Thus, Carteret was declared out of compliance, and all of the consequences thereof contained in FIRREA began. These consequences include a prohibition against asset growth and a requirement that Carteret comply with a capital directive issued by OTS. 12 U.S.C. § 1464(t)(6). Thus, on February 4, 1991, OTS Assistant Director Joseph Kehoe sent Carteret a “Stipulation and Consent to the Issuance of a Capital Directive,” with instructions to adopt it by February 28, 1991. (See Walsh Aff., Exh. B). The Capital Directive contains a wide variety of requirements with which Carteret must comply, many of which are extreme. The overall effect of these requirements is substantial governmental control of and/or intervention in even the most basic day-to-day operation of the plaintiff. Furthermore, although this Directive appears to seek consent before it will be imposed, it is evident that failure to consent results in its imposition, without consent. The sole basis of OTS’ action is Carter-et’s failure to meet capital requirements (specifically, the risk-based capital requirements), and the only reason it does not meet them is because OTS does not count the supervisory goodwill in making its determination. If Carteret was able to use that goodwill, it would be in capital compliance. No other basis for regulatory action against Carteret is asserted. Based on these events, Carteret filed a seven-count complaint. Count One asserts that defendants’ failure to recognize Car-teret’s supervisory goodwill is an action in excess of its statutory authority and is in violation of § 401(f), (g) and (h) of FIRREA (found at 12 U.S.C. § 1437 note (1990)). Count Two states that the actions of the defendants constitute a violation of the Administrative Procedure Act (“APA”). Count Three seeks a declaratory judgment that FIRREA cannot and did not abrogate plaintiff’s alleged contracts with defendants’ predecessors. Count Four asserts that the defendants are estopped from prohibiting the use of goodwill as a result of their actions and Carteret’s reliance thereon. Count Five asserts that plaintiff’s contractual right to use goodwill is property protected by the fifth amendment, so that OTS’ restriction on its use violates the fifth amendment and Carteret’s right to due process of law. Count Six seeks reformation of the contract to provide plaintiff with cash or assets in the amount that it should have received as consideration under the parties’ contracts. Finally, Count Seven asserts a claim against OTS and FDIC for breach of the contracts entered into by FHLBB and FSLIC. Carteret therefore seeks numerous forms of equitable relief and declaratory judgments. On the same day it filed its complaint, Carteret also sought a temporary restraining order (“TRO”) against the OTS. After oral argument was heard on February 15, 1991, this Court issued a TRO restraining OTS from taking any action against Carter-et based on a determination that supervisory goodwill cannot be used. The Court also set the matter down for a preliminary injunction hearing, which was held on April 12, 1991, resulting in the present opinion. II. DISCUSSION A. JURISDICTION AND RIPENESS In the February 18, 1991 oral opinion, this Court stated that it had jurisdiction as follows: The Court determines, first, that it does have jurisdiction on at least two bases. The first under the Administrative Procedure Act, 5 U.S.C. Sections 702 and 706 as elaborated by Judge Rodriguez in the Hansen [Savings Bank, et al. v. Office of Thrift Supervision [758 F.Supp. 240], No. 90-4092, slip op. (D.N.J. January 30, 1991)] case and also pursuant to the expressed directive of 12 U.S.C. § 1464(d)(1) as several other courts with similar cases have held. The Court specifically finds, at least at this juncture of the case, the defendants have not persuaded the Court that the Tucker Act or comparable remedies which the plaintiff might have before the Court of [C]laims are exclusive. (Tr. of Op. on Order to Show Cause, February 18, 1991 at 3). This Court specifically reiterates those findings and supplements them as follows. As indicted above, the OTS has issued Thrift Bulletin 38-2 which states: The Office of Thrift Supervision is applying the new capital standards to all savings associations, including those associations, that have been operating under previously granted capital and accounting forbearances. Section 5(t) of HOLA as amended by [FIRREA] eliminates these forbearances. All savings associations presently operating with these forbearances, therefore, should eliminate them in determining whether or not they comply with the new minimum regulatory capital standards. (Any FSLIC capital contributions that resulted in the creation of goodwill will be subject to the requirements for goodwill established in the capital regulation). If the association determines that it will fail its minimum regulatory capital requirements upon the elimination of capital and accounting forbearances, it must submit a capital plan ... in accordance with the regulatory capital regulation and Thrift Bulletin 36. A capital plan will not be acceptable if it includes the continuation of previously granted capital and accounting forbear-ances. Capital plans already submitted that propose to continue previous capital and accounting forbearances will be either disapproved, returned for revision and resubmittal or conditionally approved with the requested forbearances denied. (Plaintiffs App. to Compl., Exh. 15) (emphasis added). This bulletin is a final agency action within the meaning of APA § 2(c), 5 U.S.C. § 551(4), and is ripe for judicial review. See Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). Other federal courts have reached the same result. See e.g. Hansen Savings Bank, et al. v. Office of Thrift Supervision, 758 F.Supp. 240, 243 (D.N.J.1991); Franklin Federal Savings Bank, et al. v. Director, Office of Thrift Supervision, 927 F.2d 1332, 1337 (6th Cir.1991). With respect to the FDIC, however, this Court reiterates its view expressed from the bench on February 18, 1991, that plaintiffs claims against it are not ripe. The comments of the Sixth Circuit are particularly on point here: While we conclude that the suit against the OTS is sufficiently ripe, the claim against the FDIC is a different story. The FDIC has, so far as we can tell, taken no action that has had any effect whatsoever on the plaintiff. The only thing that the FDIC might be able to do to [the plaintiff] would be to revoke its insurance coverage. If it were to do that, however, [the plaintiff] would be entitled to an adversary hearing prior to the termination of its insurance. 12 U.S.C. § 1818(a)(2) & (3). That determination would then be subject to appellate review in accordance with the provisions of the Administrative Procedure Act. 12 U.S.C. § 1818(h)(2). Thus, we conclude that the claim against the FDIC is not ripe for review. Franklin Federal, 927 F.2d at 1338. This Court agrees with this analysis and, therefore, finds that plaintiffs present claims against the FDIC herein are not ripe for review. The Court understands that the FDIC has been named as a defendant in part because it is the successor to FSLIC, a party to the contracts in question. On that basis, FDIC remains a viable defendant for purposes of plaintiffs complaint. The second basis for jurisdiction in this Court is 12 U.S.C. § 1464(d)(1)(A) which provides that the Director of OTS is subject to suit, other than suits on claims for money damages. Thus, sovereign immunity has been waived as to that federal agency and this Court has jurisdiction. The parties, subsequent to this Court’s previously quoted oral opinion, have argued at length whether this Court has jurisdiction to hear plaintiffs “taking” and contract claims. Essentially, defendants argue that these claims are within the exclusive jurisdiction of the Claims Court as a result of the Tucker Act, 28 U.S.C. § 1491. The relevant portion of the Tucker Act reads as follows: (a)(1) The United States Claims Court shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. For the purpose of this paragraph, an express or implied contract with the Army and Air Force Exchange Service, Navy Exchanges, Marine Corps Exchanges, Coast Guard Aeronautics and Space Administration shall be considered an express or implied contract with the United States. * * * * * * (3) To afford complete relief on any contract claim brought before the contract is awarded, the court shall have exclusive jurisdiction to grant declaratory judgments and such equitable and extraordinary relief as it deems proper, including but not limited to injunctive relief. In exercising this jurisdiction, the court shall give due regard to the interests of national defense and national security. 28 U.S.C. § 1491(a)(1), (3) (emphasis added). Several courts have considered whether supervisory goodwill eases, based on contracts with the FHLBB and FSLIC, are properly brought only under the Tucker Act. The cases are not uniform. In Far West Federal Bank, S.B. v. Dir. Office of Thrift Supervision, 744 F.Supp. 233 (D.Or.1990), the court considered, on the government’s motion to dismiss, Claims Court jurisdiction over the bank’s rescission and fifth amendment “taking” claims. As a threshold issue, the court found that the action before it (which was nearly identical to the case at bar) was in fact an action against the sovereign. (Id. at 237 (citing Land v. Dollar, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947); Larson v. Domestic & Foreign Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949)). Specifically, the court found that “[i]f plaintiffs receive a judgment of restitution, it would expend itself on the public treasury. If they receive permanent injunctive relief or declaratory relief, it would restrain the government from acting.” (Id.) The next question for the court was whether the sovereign had waived its immunity with respect to the action, and the court determined that it had, in FIRREA. (Id.; see 12 U.S.C. § 1464(d)(1)(A) and 12 U.S.C. § 1819)). These waivers apply only to actions seeking other than money damages, and therefore the court had to determine the nature of the damages sought. (Id. at 238). Although plaintiff sought restitution, an amount measured in dollars, the court nonetheless concluded these were not money damages because “[t]hey are not based on allegations [sic] damages from a breach of contract by a contracting party, but rather restitution for the abrogation of the entire contract by congressional action.” (Id.) (Emphasis in original). Thus, the court determined that it had subject matter jurisdiction. Prior to the motion resulting in the above opinion, the Far West court had also denied the government’s motion to sever and transfer the bank’s Count IV (for rescission) to the Claims Court. (Id. at 235). The government appealed this ruling to the Federal Circuit. This appeal raised the identical issues addressed by the district court: governmental immunity from suit and grant of subject matter jurisdiction to the district court. Far West Federal, et al. v. Dir. Office of Thrift Supervision, et al., 930 F.2d 883, 887 (Fed.Cir.1991). The Federal Circuit considered FIR-REA's waivers of immunity for the two agencies and determined that it provided the district court with jurisdiction. (Id. at 888-89, 890-92). The second consideration for the court was the source of any funds which the plaintiff bank would recover as restitution. The court held that under FIR-REA, 12 U.S.C. § 1821a(d), funds would come from the agency, not the Treasury, and therefore Tucker Act jurisdiction was not implicated. (Id. at 890). Thus, the Federal Circuit affirmed the district court’s order refusing to transfer this claim to the Claims Court. See also Guaranty Financial Services, Inc. v. Office of Thrift Supervision, 742 F.Supp. 1159, 1161 (M.D.Ga.1990), rev’d on other grounds, 928 F.2d 994 (11th Cir.1991) (district court determined that it had jurisdiction despite the Tucker Act, in light of explicit waiver in FIRREA); Flagship Federal Savings Bank, et al. v. M. Danny Wall, Director, et al., No. 90-0079, slip op. at 5 (S.D.Cal., February 14, 1990) (same). In contrast, the district court in Olympic Federal Savings and Loan Association v. Director, Office of Thrift Supervision, et al., No. 90-4082, 1990 WL 134841 (D.D.C., September 6, 1990), dismissed the bank’s breach of contract claims. There, the court reviewed the Tucker Act and determined that the action before it was within its confines. (Slip op. at 18). Furthermore, the court found that the APA did not provide for a waiver of the sovereign’s immunity. (Id.) The Olympic Federal case is distinguishable from Guaranty and Far West, however, because in Olympic, the plaintiff “readily admits” that its suit is against the United States. (Id. at 11). Therefore, the provisions of FIRREA providing for suit against OTS and FDIC were not pressed. The Olympic decision is distinguishable from the present case as well. Here, plaintiff’s suit is against OTS and FDIC, not the United States. Furthermore, the relief sought in Carteret’s complaint is not money damages, and therefore the jurisdictional sections of FIRREA apply. (See Far West, 930 F.2d 883 (Fed.Cir.1991)). Thus, it appears that the present suit is properly before this Court in all respects. As a final note, this Court recognizes that the present matter is before it on the basis of a preliminary injunction, not a motion to dismiss or a motion for summary judgment. Therefore, it is sufficient to recognize that this Court has jurisdiction over at least plaintiff’s FIRREA claims such that it can entertain the present motion. B. Standards Governing Preliminary Injunctions The standards governing preliminary injunctions have been articulated in this Circuit as follows: In considering a motion for preliminary injunctive relief, a court must carefully weigh four factors: (1) whether the mov-ant has shown a reasonable probability of success on the merits; (2) whether the movant will be irreparably injured by denial of such relief; (3) whether granting preliminary relief will result in even greater harm to the nonmoving party; and (4) whether granting preliminary relief will be in the public interest. SI Handling Systems, Inc. v. Heisley, 753 F.2d 1244, 1254 (3d Cir.1985); see also Hoxworth v. Blinder, Robinson & Co., Inc., 903 F.2d 186, 197-98 (3d Cir.1990); Klitzman, Klitzman and Gallagher v. Krut, 744 F.2d 955, 958-59 (3d Cir.1984); Continental Group v. Amoco Chemicals Corp., 614 F.2d 351, 356-57 (3d Cir.1980). Preserving the status quo of an action pending final determination is the primary purpose of a preliminary injunction. In re Arthur Treacher’s Franchisee Litigation, 689 F.2d 1150 (3d Cir.1982). A plaintiff must establish both items (1) and (2) above in order to obtain a preliminary injunction. Morton v. Beyer, 822 F.2d 364, 367 (3d Cir.1987). C. Reasonable Probability of Success on the Merits This Court finds that there are two general theories which should be addressed. The first concerns whether Car-teret’s agreements with FSLIC and FHLBB are enforceable contracts and, if so, whether FIRREA abrogates or preserves them. The second is Carteret's fifth amendment “takings” argument. 1. Statutory Argument There are two issues which are relevant to Carteret’s probability of success on the merits under this theory. The first is whether the documents generated in its supervisory acquisitions constitute a binding contract. The second issue is whether FIRREA preserves or abrogates those contracts. Complicating the latter is the question of the appropriate amount of deference to be given to agency interpretation of the statute. a. Existence of Contractual Forbearances Both the 1982 and 1986 Assistance Agreements between Carteret and FSLIC state that the agreement and the parties’ rights and obligations thereunder are to be governed by the law of New Jersey to the extent that federal law does not control. (1982 Assistance Agreement, § 19, attached as Exh. C to O’Brien Aff.; 1986 Assistance Agreement, § 22, attached as Exh. F to Blanco Aff.). Therefore, the law applicable here is the same as that set out in Hansen, 758 F.Supp. at 244-45: To the extent that this contract must be interpreted, New Jersey law will apply. See Kalman Floor Co. v. Jos. L. Muscarelle, Inc., 196 N.J.Super. 16, 481 A.2d 553 (App.Div.1984). New Jersey law provides “that two or more writings which are all parts [sic] of one transaction relating to the same subject matter, are to be read and interpreted as one instrument, whether or not they refer to each other.” Wellmore Builders, Inc. v. Wannier, 49 N.J.Super. 456, 463, 140 A.2d 422, 426 (App.Div.1958). See also Lawrence v. Tandy & Allen, 14 N.J. 1, 100 A.2d 891 (1953) (“[t]he writing alone is not ‘wholly and intrinsically self-determinative of the parties’ intent to make it the sole memorial.”). The Third Circuit Court of Appeals has appropriately noted that construing contemporaneous documents is only done when the parties intended such a result. See Berger v. United States Fidelity & Guaranty Co., 834 F.2d 1154, 1161 (3d Cir.1987) (“Only where the documentary proof may be fairly read to indicate that all parties agreed upon the modification of one document will [the court construe the contemporaneous documents together]”). Contrary to the government’s position at oral argument, there is no substantial difference between these principles and those governing interpretation of contracts under general federal law. Therefore, this Court will apply the above standards in determining whether the parties have a valid contract for the use of supervisory goodwill to determine capital compliance. i. The 1982 Transaction The relevant portions of the documents are as follows. The 1982 forbearance letter expressly states: Provided that Carteret submits to the Principal or other Supervisory Agent of the [FHLBB], New York, New York, certification by Carteret’s independent accountants that Carteret has accounted for the assets and liabilities acquired in the Mergers, and the resulting periods for the amortization of goodwill and the accretion of the loan discount, in accordance with generally accepted accounting principles (“GAAP”), as GAAP existed at the time of the [FHLBB’s] approval of the Mergers, such certification shall be considered to be satisfactory evidence that Carteret’s use of the purchase method of accounting is in accordance with GAAP, and such use of the purchase method of accounting will be considered to be in accordance with regulatory accounting procedures. (1982 Forbearance Letter, ¶ 10, attached as Exh. A to O’Brien Aff.) (emphasis added). The certification of an accountant was provided, making it clear that the applicable period of amortization was not to exceed 40 years. (See Faueette Aff., Exh. G, letter of Peat, Marwick dated September 29, 1982; Accounting Principles Board (“APB”) Opinion 17, 111127-31, attached as Exh. C to Winning Deck). The forbearance letter is dated September 30, 1982, the same date as the merger, and specifically refers to the related Assistance Agreement and the FHLBB’s resolution approving the merger. (Id. at opening, ¶ 9). The last sentence of the letter reserved to FHLBB “all of their statutory rights and privileges with respect to Carteret.” (Id.) Accordingly, counsel for Carteret sought and acquired clarification of this reservation. On October 12, 1982, the FHLBB stated that the last sentence should read: Other than actions to enforce the regulatory requirements waived in accordance with paragraphs 1 through 10 and the statutory provisions authorizing imposition of the waived requirements, insofar as such requirements are waived, the [FHLBB] and the FSLIC expressly reserve all of their statutory rights and privileges with respect to Carteret. (Letter of October 12, 1982, attached as Exh. B to O’Brien Aff.). The Assistance Agreement’s recitals specifically refer to the mergers and note that a condition to the obligation of the parties to consummate the merger is the Assistance Agreement. (O’Brien Aff., Exh. C at 1; see also “§ 14 Conditions” at 34). The Assistance Agreement also conditioned FSLIC’s obligations on various events, all of which have been met. (Id. at 35). The Agreement also contains an integration clause: § 17 Entire Agreement, Modification, Headings This Agreement, together with any interpretation thereof or understanding agreed to in writing by the parties, constitutes the entire agreement between the parties hereto and supersedes all pri- or agreements and understandings of the parties in connection herewith, excepting only the Merger Agreement and any resolutions or letters issued contemporaneously herewith by the Federal Home Loan Bank Board or [FSLIC], provided, however, that in the event of any conflict, variance, or inconsistency between this Agreement and the Merger Agreement, the provisions of this Agreement shall govern and be binding on all parties insofar as the rights, privileges, duties, obligations, and liabilities of [FSLIC] are concerned. No modification of this Agreement shall be binding unless executed in writing by the parties hereto or their successors. Sections headings are not to be considered part of this Agreement, are solely for the convenience of reference, and shall not affect the meaning or interpretation of this Agreement or any provision hereof. (Id. at 36-37) (emphasis added). The specified purpose of the Agreement is to provide a means to prevent the failure of the merging thrifts, protect depositors, creditors and the community from losses, as well as limit expenses of FSLIC. (Id., § 20 at 37). Furthermore, the Agreement was entered into so that Carteret “may receive the benefits and assume the risks contracted for,” and while it could expect certain business risks, “it is intended that the purpose of this Agreement be accomplished without imposing an unreasonable financial burden” upon Carteret. (Id. at 37-38). Thus, “[t]he parties therefore agree that they shall in good faith, and with their best efforts, cooperate with one another to carry out the purposes of this Agreement as described herein.” (Id. at 38). Finally, FHLBB’s Resolution No. 82-662 approving the transaction specifically recites that one consideration for the resolution is the merger in question, which is conditioned upon the execution of the Assistance Agreement. (Faucette Aff., Exh. H at 1). The resolution also states that the merger is itself conditioned upon FHLBB approval. (Id.) Most importantly for Car-teret, the resolution contains the following language: [IT IS] RESOLVED FURTHER, That the mergers shall be accounted for using the purchase method of accounting in accordance with generally accepted accounting principles (“GAAP”); and RESOLVED FURTHER, That certification by Carteret’s independent accountants that Carteret has accounted for the mergers in accordance with GAAP shall be considered satisfactory evidence that said purchase method of accounting is in accordance with GAAP. (Id. at 3). Review of these various provisions, as well as a reading of the entire documents together, shows that the parties intended the entire agreement to include the terms relating to purchase method accounting in the forbearance letter and the resolution. Each of the documents refers to the others and in fact makes execution of several of them conditioned upon execution of the others. The integration clause in the Assistance Agreement specifically incorporates contemporaneous resolutions and other writings between the parties, thus expressly including the forbearance letter and Resolution 82-662. Therefore, the clear intent of the documents was to create together an agreement that Carteret could use the purchase method of accounting, and that this constituted one of the benefits for which Carteret bargained. This Court finds further support for this interpretation in additional evidence provided by Carteret. For example, each of three bids sent to the FHLBB specifically requested a binding commitment permitting Carteret to use the purchase method and amortize goodwill over 40 years, using the straight-line method. (See Exhs. D, E and F to Faucette Aff.). Furthermore, counsel involved in the transaction avows that this commitment was an express condition of the transaction. (Faucette Aff., 1113). Carteret’s CEO at the time, Robert O’Brien, asserts that “Carteret could not have done the Delray and Barton acquisitions without booking supervisory goodwill as capital for regulatory purposes, or, in the alternative, receiving massive government financial assistance.” (O’Brien Aff., HI! 18, 20). In fact, O’Brien states, without the commitment “we would have accumulated a capital deficit so deep that we would have had no chance of survival ... [and] the regulators would never have permitted Carteret to create such a deficit.” (Id., II19). Finally, Carteret has obtained an affidavit from Michael Horn, an attorney who was Commissioner of Banking in New Jersey at the time, and whose approval was required because Barton was a state chartered institution. (Horn Aff., 11111, 9; Horn Dep. at 7, 19, attached as Exh. 2 to Plaintiff’s App. in Reply). Mr. Horn states that he “would not have approved this acquisition as in the public interest without the understanding, which I held at the time, that Carteret held a right fixed by contract to count as regulatory capital the value of supervisory goodwill recorded in the Merger.” (Horn Aff., fl 9). Mr. Horn also testified that this contractual term was common in the industry, and was an important element to induce solvent institutions to acquire insolvent ones without the necessity of cash outlays by the government. (Id. at ¶ 12). Despite this overwhelming evidence to the contrary, OTS argues that Carteret did not have a binding contract with FSLIC and FHLBB. OTS claims that the documents do not refer to “supervisory goodwill” for regulatory purposes, and in fact “do not even mention the term goodwill.” (Defendant’s Br. at 46). Instead, the documents refer only to a method of accounting (the purchase method), not what assets can be used to meet regulatory requirements. (Id. at 47). Not only is this argument completely devoid of merit, it is factually incorrect. As quoted above, the forbearance letter, which is a part of the entire agreement between the parties, specifically refers to amortization of goodwill. Secondly, by OTS’ own accountant’s declaration, the purchase method of accounting is determining goodwill as an asset, and amortizing it over time. {See Lindo Decl., Till 4-6; see also n. 4 supra). OTS also claims that methods of computation apply only for purposes of the Assistance Agreement according to the section entitled “Accounting Principles”, thus undercutting plaintiff’s theory. (Id., referring to § 13). This Court’s determination did not rest on this portion of the Assistance Agreement, but upon the Agreement as a whole and the integration clause in particular. Thus, this clause in the Agreement is not applicable. The government also argues that by its own terms, the Assistance Agreement terminates three years after its effective date. (Id. at 47-48, referring to § 1(a)). This does not alter this Court’s finding that there is a binding contract with respect to supervisory goodwill, because § 13 begins “except as otherwise specifically provided.” The purchase method of accounting provided for does not contain any limitation of time, but instead refers simply to the method as it is applied under GAAP. Thus, the termination of the Agreement does not affect this provision at all. OTS also states, in a conclusory fashion, that the Assistance Agreement did not bind the FHLBB (as opposed to the FSLIC) and therefore it is not bound as FHLBB’s successor, only FDIC (FSLIC’s successor) would be bound in any event. (Defendant’s Br. at 48 n. 32). This statement is incorrect. The agreement between the parties is not just the Assistance Agreement; it includes the Board’s resolution and forbearance letter. Therefore, it is equally binding on OTS and FDIC. Finally, OTS argues that none of the documents permits Carteret to use goodwill to meet regulatory requirements. The forbearance letter is not itself a contract, they claim, relying on Flagship Federal Savings Bank v. Director, OTS, 748 F.Supp. 742 (S.D.Cal.1990). In Flagship, the court determined that the forbearance letters and resolutions in question did not constitute a contract. (Id., at 748). That case is distinguishable, because Flagship did not involve an Assistance Agreement, only a forbearance letter and resolution. Thus, nowhere did the parties bargain for various benefits and memorialize them in a series of documents referring to each other, as they did here. The parties have also presented competing arguments and affidavits on the question of Carteret’s financial stability prior to entering the 1982 transaction. Defendants are arguing, as far as it can be determined, that Carteret obtained benefits from the acquisition, including the improvement of its financial stability. (See Defendant’s Br. at 13-16, 56-57; Winning Decl. with attachments). This argument really begs the question. Carteret was under no obligation to help out the FHLBB and FSLIC by acquiring Delray and Barton. As the Assistance Agreement recognized {see purposes, quoted above), Carteret entered the Agreement in part to acquire the stated benefits of the transaction. This is as it should be; if there was no benefit to Car-teret, it would not have entered into and the government most likely would not have approved the transaction. ii. The 1986 Transaction This Court finds that the 1986 transaction constitutes a second agreement between the parties to utilize the purchase method of accounting, for any and all purposes. The documents relating to the transaction are nearly identical to those promulgated in the 1982 transaction, including the many references to each other and an integration clause specifically including resolutions and other contemporaneous written agreements. Furthermore, defendants make no arguments which are not similarly without merit concerning the 1986 transaction. Thus, Carteret has shown that it has a reasonable probability of success on the merits of its claim that it is contractually entitled to utilize supervisory goodwill to meet regulatory requirements. OTS makes a lengthy argument to the effect that even if Carteret had a contract to use supervisory goodwill, it cannot have a contract right to be exempt from congressional changes in the law. (Defendant’s Br. at 60-63 (relying on Bowen v. Public Agencies Opposed to Social Security Entrapment, 477 U.S. 41, 106 S.Ct. 2390, 91 L.Ed.2d 35 (1986))). This reliance is misplaced. Bowen was primarily concerned with the question of whether a statute could create a contractual right such that amendment of the statute to abrogate that right would constitute a taking under the fifth amendment. The Court determined that no such contract was created, primarily because Congress reserved to itself, in the originally applicable statute, the right to alter, amend, or repeal any provisions of that statute. 477 U.S. at 51-52, 106 S.Ct. at 2396-97. Contrary to OTS’ position, however, Carteret is not saying that Congress either created the contract by statute or has contracted away its right to legislate. Instead, Carteret primarily argues that even if Congress does have the right to abrogate or alter these contracts, it has not exercised it in FIRREA. This Court agrees with Carteret, as is discussed below. b. The Effect of FIRREA on the Contracts As indicated above, the OTS, charged with enforcing FIRREA, has interpreted its provisions to abrogate all for-bearances previously granted such that the new, stricter requirements apply without the use of supervisory goodwill except as specifically provided. {See OTS Bulletin 38-2). It should be made clear at this point that Carteret does not argue that it is exempt from these new requirements. Rather, it simply argues that in determining its compliance with them, it is entitled to use supervisory goodwill as an asset. {See Plaintiff’s Reply Br. at 4). In fact, Carteret has provided considerable evidence showing its recent efforts to meet the new, stricter requirements by improving its financial condition, introducing a new management team in November 1989 and developing a business plan designed to foster capital strength. {See generally Walsh Aff. and Exh. A thereto). The basis for OTS’ interpretation, embodied in OTS Bulletin 38-2, is the language in FIRREA § 301, 12 U.S.C. § 1464. Specifically, § 1464(s) and (t) provides, in relevant part: (s) Minimum capital requirements. (1) In general. Consistent with the purposes of section 908 of the International Lending Supervision Act of 1983 [12 U.S.C. § 3907] and the capital requirements established pursuant to such section by the appropriate Federal banking agencies (as defined in section 903(1) of such Act [12 U.S.C. § 3902(a) ]), the Director [of OTS] shall require all savings associations to achieve and maintain adequate capital by— (A) establishing minimum levels of capital for savings associations; and (B) using such other methods as the Director deems appropriate. * * * * * * (t) Capital standards. (1) In general. (A) Requirement for standards to be prescribed. The Director [of OTS] shall, by regulation, prescribe and maintain uniformly applicable capital standards for savings associations.... (Emphasis added). Based primarily on these directives, OTS asserts that FIRREA applies to all savings associations, irrespective of prior forbearances. Carteret, on the other hand, looks to other portions of FIRREA to support the contention that it specifically preserves contracts like those involved here. The relevant portions of FIRREA are § 401(f), (g) and (h) (12 U.S.C. § 1437 note). Section 401(a), it should be noted, provides for the abolition of both FSLIC and FHLBB, effective on the date of the enactment of FIR-REA for FSLIC and 60 days thereafter for FHLBB. Section 401(f)(1) and (g)(1) are the savings provisions upon which much of the present controversy focuses. Thus, they are quoted in full: Sec. 401. FSLIC and Federal Home Loan Bank Board abolished. * * * * * * (f) Savings provisions relating to FSLIC. (1) Existing rights, duties, and obligations not affected. Subsection (a) shall not affect the validity of any right, duty, or obligation of the United States, the Federal Savings and Loan Insurance Corporation, or any other person, which— (A) arises under or pursuant to any section of title IV of the National Housing Act [12 U.S.C. §§ 1724 et seq.]; and (B) existed on the day before the date of the enactment of this Act. fc * * * * * (g) Savings provisions relating to FHLBB. (1) Existing rights, duties, and obligations not affected. Subsection (a) shall not affect the validity of any right, duty, or obligation of the United States, the Federal Home Loan Bank Board, or any other person, which— (A) arises under or pursuant to the Federal Home Loan Bank Act [12 U.S.C. §§ 1421 et seq.], the Home Owners’ Loan Act of 1933 [12 U.S.C. §§ 1461 et seq., generally], or any other provision of law applicable with respect to such Board (other than title IV of the National Housing Act) [12 U.S.C. §§ 1724 et seq.], and (B) existed on the day before the date of enactment of this act. Carteret argues that its contract is an “obligation” which is not affected by abolition of FSLIC and FHLBB, inasmuch as part (B) makes it clear that abolition of the agencies and enactment of FIRREA are the same. (See Plaintiffs Br. at 44-46). OTS, on the other hand, asserts that Car-teret’s “rights” were not abrogated by § 401(a)’s abolition of FSLIC and FHLBB, but by the other provisions of FIRREA as supplemented by OTS’ subsequent interpretations. (Defendant’s Br. at 25-30). OTS further argues that § 401, upon which plaintiff relies, is part of Title IV of FIR-REA, applying only to administrative matters surrounding FIRREA’s enactment. At oral argument, OTS clarified this argument by saying that § 401 saves contracts but § 301 then overrides supervisory goodwill contracts by its terms. Title III includes the substantive provisions of FIR-REA and has its own savings provisions, thus precluding the finding that Title IV contains an exception for savings associations with forbearances. (Id. at 29-33). Essentially, both sides argue that the language of the statute “clearly” supports their interpretation. Just in case this Court disagrees with them that the language “clearly” supports their position, each side relies on numerous statutory construction techniques. For example, OTS argues the old rule that mention of one exception implies the exclusion of others. Carteret, on the other hand, argues that “[i]t is hornbook law that implied abrogations of ... contractual rights and obligations are strongly disfavored.” (Plaintiff’s Br. at 42). This Court does not find the pertinent statutory language to be as clear as either party argues. While § 301 (12 U.S.C. § 1464) clearly does not provide for any exceptions, § 401(g) purports to save obligations from the abolition of FHLBB, while part (B), rather than saying “existed while the agency existed” says “existed before the date of the enactment of this Act,” thus suggesting that abolition of FHLBB and enactment of FIRREA are one and the same. Under this reading, § 401(g) does save the plaintiff’s contracts. On the other hand, § 401(g) could be read to save obligations only from the fact of abolition of FHLBB, and it is not this abolition that abrogates plaintiff’s contracts, it is the other provisions of FIR-REA. This is another possible construction of the language. In fact, the parties thoroughly explore a myriad of other possible interpretations of this statute based on all the usual statutory interpretation rules. Furthermore, both sides find substantial support for their respective positions both in the legislative history and in the experience of the judiciary thus far. Indeed the courts have divided over the interpretation of FIRREA even in the short time since it became effective. (See Guaranty, 928 F.2d 994, 1003 n. 3 (11th Cir.1991) (listing cases on both sides of the question)). Before launching into this Court’s own interpretation of FIRREA, however, it is important to realize that OTS is the agency specifically authorized to enforce the statute; therefore, its interpretation is entitled to some deference. It is now well settled that When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984); see also Huber v. Casablanca Indust., 916 F.2d 85, 96-97 (3d Cir.1990) (same) (petition for cert. filed January 9, 1991); West v. Bowen, 879 F.2d 1122, 1124 (3d Cir.1989) (same); Grocery Town Market, Inc. v. United States, 848 F.2d 392, 394 (3d Cir.1988) (same); Wheeler v. Heckler, 787 F.2d 101, 104 (3d Cir.1986) (“We must defer to [the agency's] construction, as long as it is reasonable and not arbitrary and capricious.”); Pennsylvania v. United States, 752 F.2d 795, 798 (3d Cir.1984) (“[A] reviewing court must uphold the agency’s interpretation if it is reasonable, notwithstanding the court’s belief that some other policy was preferable.”). This Court has already determined that the statute in question is ambiguous. The legislative history has had the same success as the statute; the cases are on both sides with respect to whether the legislative history is clear on the question. Thus, the intent of Congress is also ambiguous. Accordingly, the next question is whether OTS’ interpretation, that FIRREA abrogates the contract, is reasonable and permissible. As indicated above, it is a possible interpretation based on the language of the statute and traditional rules of statutory construction. This does not answer the question of reasonableness and permissibility, however. Other considerations are important, particularly in the context of affecting contractual rights and the purposes of FIR-REA. Specifically, this Court determines that OTS’ interpretation is unreasonable because Congress cannot and indeed, should not, abrogate a contractual right without clearly stating its intent to do so. Secondly, it is clearly not one of the purposes of FIRREA to permit the agency to make an otherwise healthy institution submit to its sanctions, thus jeopardizing the ability of that institution to survive and serve the community.' An interpretation which does so is patently unreasonable. The court’s opinion in Sterling Savings Association v. Ryan, et al., 751 F.Supp. 871 (E.D.Wa.1990), modified (November 1, 1990, narrowing scope of injunction), is persuasive on the first point. After recognizing the laudable purposes of FIRREA and the difficult task of saving thrift institutions, the court stated: Hard times do indeed call for stern measures. But those measures should not be wholly devoid of all equity, decency, and compliance by the government with its prior agreements. In a somewhat analogous context, Justice Louis Bran-déis once wrote: Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.... Olmstead v. United States, 277 U.S. 438, 485 [48 S.Ct. 564, 575, 72 L.Ed. 944] (1928) (Brandeis, J., dissenting). Such advice and counsel is equally germane in the realm of contract_ [E]ven assuming the defendants are correct in their assertion that Congress harbored an intent to abrogate binding and enforceable contracts, as it has the power to do, the court must insist that it be evidenced in a forthright and unmistakable manner. Absent a clear mandate to the contrary, the court will require the defendants to honor the contracts entered into between [plaintiff] and the predecessor agencies. Sterling, 751 F.Supp. at 881. Carteret is correct in saying that “[i]t is hornbook law that implied abrogations of ... contractual rights and obligations are strongly disfavored.” (Plaintiff’s Br. at 42). For example, in a different context, the Third Circuit recently refused to read a statute to abrogate provisions in a privately negotiated contract without clear language to that effect in the statute. Ches ter County Intermediate Unit v. Pa. Blue Shield, 896 F.2d 808, 815 (8d Cir.1990) (“[W]e cannot conclude, without clear statutory support, that Congress intended the [statute] to abrogate such a provision in a privately negotiated contract. We are confident that Congress would not have done so without explicitly so providing.”). See also Bush v. Oceans International, 621 F.2d 207, 211 n. 4 (5th Cir.1980) (“[A] change in the status quo should not be inferred unless Congress has unmistakably indicated a wish to the contrary.”) Federal Power Commission v. Niagara Mohawk P. Corp., 347 U.S. 239, 252-53, 74 S.Ct. 487, 495-96, 98 L.Ed. 666 (1953), also suggests that in order for Congress to affect rights it must do so explicitly. In that case, there was legislative history tending to support the claim that the statute in question did not affect contract rights, but this history was not dispositive. Rather, the Court demanded that “[t]o convert this Act from a regulatory Act to one automatically abolishing preexisting water rights on a nationwide scale calls for a convincing explanation of that purpose.” (Id.) This principle applies here as well. The legislative history is clear as to congressional intent to require savings associations to meet more stringent requirements, in order to avoid another S & L crisis, but is not clear as to the treatment of existing contracts regarding the use of supervisory goodwill. The language of the statute is similarly unclear on this point. Before a court will recognize abrogation of contractual rights, statutory language must clearly so state. Therefore, OTS’ determination is unreasonable. This Court’s second concern, relating to the avowed purposes of FIRREA, is similarly important. This case constitutes an example of agency discretion gone haywire. Despite operating losses in 1990, Carteret has not exhibited financial instability or poor management; in fact, it has made considerable effort to come into compliance with the new requirements. Despite these facts, however, OTS apparently wants to charge in and micro-regulate the institution because OTS chooses not to hon- or a valid contract made by its predecessor. The result of OTS’ action will be detrimental to Carteret (see below), and therefore to Carteret’s depositors and creditors, as well as those taxpayers who fund OTS’ actions. Congress surely did not mean to permit OTS to make an apparently healthy bank sick. Therefore, OTS’ construction of FIR-REA in a way that is virtually certain to produce such a result is inherently unreasonable, and its actions are beyond its authority. Carteret has met its burden of showing a likelihood of success on the merits of its claim. This Court takes note of the fact that there are two circuit court opinions which provide some support for the government’s interpretation of FIRREA. In Franklin Federal, 927 F.2d 1332 (6th Cir.1991), the Sixth Circuit reversed the district court’s entry of a permanent injunction preventing application of FIRREA’s requirements to the plaintiff bank. The court interpreted § 401(g)(1) of FIRREA in the manner argued by the OTS, limiting its effect “to those obligations that could have been affected by virtue of the abolition of the FSLIC or the FHLBB.” (at 1339). The court, after interpreting the statute itself, noted that OTS’ interpretation must be reasonable. This Court disagrees with the position of the Sixth Circuit, and finds that case distinguishable on several grounds. First, the equities in Franklin Federal were considerably different than those herein. There, the agreements arose out of a transaction in which a group of investors formed a company for the purpose of obtaining the failed bank. There was no “healthy” acquiring bank that is now losing the benefit of its bargain and being put at great risk as a result. In addition, there was no contract in Franklin Federal, unlike the situation here. These considerations no doubt affected the Sixth Circuit’s interpretation of the statute and its consideration of whether or not that interpretation was reasonable. Additionally, the Sixth Circuit failed to consider § 401(g)(1)(B), pertaining to agreements existing “before the date of the enactment of” FIRREA. Finally, to the extent that one might find Franklin Federal indistinguishable, this Court disagrees with the result and is not bound by the decisions of the Sixth Circuit. The Eleventh Circuit has also reversed a district court’s imposition of a preliminary injunction, asserting that the plaintiff bank did not meet its burden of proving a substantial likelihood of success on the merits of its claim that FIRREA did not abrogate its contract. In that case, however, the contract specifically warned the plaintiff that the relevant regulatory scheme could change to its detriment. The court, therefore, interpreted that contract to mean that the forbearance with respect to goodwill applied only so long as the rules did not change. Guaranty, 928 F.2d 994, 999 (11th Cir.1991). Thus, the court was also able to construe the contract in a manner which did not affect to sovereign’s authority to legislate. (Id. at 1000-01). The court then considered FIRREA. After determining that it was ambiguous on the question of whether it altered forbearances relating to supervisory goodwill, the court extensively reviewed the legislative history and determined that Congress intended FIR-REA to abrogate supervisory goodwill for-bearances. (Id. at 1006). Thus, that was the end of the consideration since the agencies’ interpretation was consistent with this intent. (Id.) For many of the same reasons expressed regarding Franklin Federal, this Court is not persuaded by the reasoning in Guaranty. Most notably, this Court disagrees with the Eleventh Circuit’s reliance on the legislative history. Review of the considerable legislative history presented by the parties herein is simply not as conclusive as the Guaranty court suggests. Much of the discussion concerning the proposed Hyde Amendment, for example, was simply about imposition of additional