BANK OF AMERICA, FSB, ET AL., v. THE UNITED STATES (95-660C & 95-797C)

Winstar: Contracts – (i) a Bank
Board resolution approving a holding company’s acquisition of a thrift
institution and granting the institution special regulatory capital accounting privileges constitutes a contract between the Bank Board and
the holding company where both the language of the resolution and
the parties’ preceding negotiations plainly evidence a bargained-for
promissory exchange; (ii) the contract, being intended for the direct
benefit of the thrift institution, is also enforceable by the institution as
a third-party beneficiary; and (iii) principals of the holding company who
agree to serve as guarantors of the holding company’s promise to maintain
the thrift institution’s regulatory capital levels are not parties to the
contract between the Bank Board and the holding company because they
lack any direct and immediate stake in the contemplated performance and
are not identified as contract parties