12 C.F.R. § 702 app A to Subpart D of Part 702
A LICU that is authorized to accept uninsured secondary capital accounts and each investor in such an account must have executed and dated the following "Disclosure and Acknowledgment" form, a signed original of which must be retained by the credit union:
Disclosure and Acknowledgment
[Name of CU] and [Name of investor] hereby acknowledge and agree that [Name of investor] has committed [amount of funds] to a secondary capital account with [name of credit union] under the following terms and conditions:
1. Term. The funds committed to the secondary capital account are committed for a period of __ years.
2. Redemption prior to maturity. Subject to the conditions set forth in 12 CFR 702.414 , the funds committed to the secondary capital account are redeemable prior to maturity only at the option of the LICU and only with the prior written approval of NCUA.
3. Uninsured, non-share account. The secondary capital account is not a share account and the funds committed to the secondary capital account are not insured by the National Credit Union Share Insurance Fund or any other governmental or private entity.
4. Prepayment risk. Redemption of U.S.C. prior to the account's original maturity date may expose the account investor to the risk of being unable to reinvest the repaid funds at the same rate of interest for the balance of the period remaining until the original maturity date. The investor acknowledges that it understands and assumes responsibility for prepayment risk associated with the [name of credit union]'s redemption of the investor's U.S.C. account prior to the original maturity date.
5. Availability to cover losses. The funds committed to the secondary capital account and any interest paid into the account may be used by [name of credit union] to cover any and all operating losses that exceed the credit union's net worth exclusive of allowance accounts for loan losses, and in the event the funds are so used, (name of credit union) will under no circumstances restore or replenish those funds to [name of institutional investor]. Dividends are not considered operating losses and are not eligible to be paid out of secondary capital.
6. Accrued interest. By initialing below, [name of credit union] and [name of institutional investor] agree that accrued interest will be:
____Paid into and become part of the secondary capital account;
____Paid directly to the investor;
____Paid into a separate account from which the investor may make withdrawals; or
____Any combination of the above provided the details are specified and agreed to in writing.
7. Subordination of claims. In the event of liquidation of [name of credit union], the funds committed to the secondary capital account will be subordinate to all other claims on the assets of the credit union, including claims of member shareholders, creditors and the National Credit Union Share Insurance Fund.
8. Prompt Corrective Action. Under certain net worth classifications (see 12 CFR 702.204(b)(11) , 702.304(b) and 702.305(b) , as the case may be), the NCUA may prohibit [name of credit union] from paying principal, dividends or interest on its uninsured secondary capital accounts established after August 7, 2000, except that unpaid dividends or interest will continue to accrue under the terms of the account to the extent permitted by law.
ACKNOWLEDGED AND AGREED TO this ____ day of [month and year] by:
_______________________________
[name of investor's official]
[title of official]
[name of investor]
[address and phone number of investor]
[investor's tax identification number]
_______________________________
12 C.F.R. 702 app A to Subpart D of Part 702