concurring.
Although joining the majority, I wish to add several observations. As author of the panel opinion vacated and replaced by the opinion to the contrary effect that I now join, I would like to explain how the panel majority erred.
What made Coast’s Agreement unusual was language added, as section 6(a)(1)(C), to that contained in the typical Agreement. It consisted of two parts: (1) “the cash contribution ... shall be credited to [Coast’s] net worth account”; and (2) “shall constitute regulatory capital.” The first clause essentially restates what in the case of the typical Agreement is contained only in an attached letter authorizing accounting forebearances (from Generally Accepted Accounting Principles). It is referred to as “SM-1.” Arguably, when contained only in such a “side letter,” this language can be nullified any time by subsequent changes in regulation or policy. However, when, as here, it is inserted into the Agreement itself, the practical effect is to preclude the government from cancel-ling this forbearance between the signing of the Agreement and the crediting of the cash contribution to the net worth account of the acquiring thrift for the year of the transaction, or indeed in any subsequent year. Without the forbearance, the credit to capital (net worth) — on the right-hand (liability and capital) side of the balance sheet — would not be allowed. Without it, all credits and debits respecting the FSLIC cash contribution would appear on the left-hand (asset) side.
Similarly, addition of the second clause to the Coast Agreement (especially the word “shall”) had the practical effect of emphasizing that it barred the government from cancelling this section 6(a)(1)(C) right which clearly applies not only in the first year, but also in years subsequent to the year of acquisition, by later changing regulations or agency policy. Protecting against such future regulatory contingencies is exactly what Coast’s negotiator, Richard Fink, averred was the purpose of his insisting that the first clause be added to the Agreement itself instead of being contained only in a “side letter,” and that the second clause be inserted too. No contrary testimony was presented.
To the extent the panel deduced from such added language the parties’ agreement to provide the capital credit with “permanence,” the panel was correct. Where it erred was to assume that permanence of the right to credit the amount to capital (right-hand side) in year one and each subsequent year necessarily meant also that the parties im/pliedly agreed to forbear the amortization of the portion of “goodwill” (left-hand side) corresponding to that amount. Admittedly, such non-amortization would be a sharp departure from the requirement of GAAP.
“Shall constitute regulatory capital,” however, does not mean “shall be credited to regulatory capital.” It simply means it shall tend to increase the amount shown on *1042the line in the financial balance sheet called “Total Regulatory Capital” from what it otherwise would be. But the effect and the actual accounting entries are different. By definition, Total Regulatory Capital is the sum of Contributed Capital and Retained Earnings, the latter reflecting certain expenses. Thus, one cannot credit an amount directly to Total Regulatory Capital. But the panel assumed one could do so. Although “boosting” regulatory capital, the amount corresponding to the cash contribution is actually entered as a credit on the line called “Contributed Capital.” That line is then subject to reduction for certain expenses, including those related to annual straight-line amortization of goodwill, which decrease the amount entered under “Retained Earnings” from what it otherwise would be.
The panel got confused by the language of the testimony of the several witnesses. It failed to see that the permanence Fink urged he sought and obtained, as Chairman Gray agreed, was merely of the credit to Contributed Capital, not directly to Total Regulatory Capital, several lines below. That credit truly is “to the net worth account” and it does (“shall”) permanently “constitute regulatory capital” in the sense that it increases Total Regulatory Capital compared to what it would otherwise be, year by year. But all this can occur without also requiring that the goodwill not amortize. In this way the testimony of Fink, Coast’s CEO, Gray and others may be fully reconciled. However, the panel took too literally testimony by Fink, Coast’s CEO and others that “regulatory capital” was credited.
Finally, to depart from GAAP, Section 20 requires that the Agreement must “otherwise provide.” This Agreement, however, was silent about non-amortizing of the portion of goodwill that corresponded to the credit of $299 million to Contributed Capital. The panel reasoned, incorrectly, that the permanence agreed to could only be achieved by not amortizing goodwill. That unfortunately was a logical error. Although all the testimony referred to making permanent the “credit” to “regulatory capital,” the actual accounting entries were necessarily otherwise. In short, imprecise terminology led to incorrect logic.